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RAL  EMPLOYERS' 
LIABIUTY  ACT 


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LIBRARY 


FEDERAL  EMPLOyERS'  LlilLHy  ACT 


Practitioner^s  Manual 


DIGEST  OF  DECISIONS  UNDER  ACT 

JUDICIAL  LAW  IN  LANGUAGE  OF  COURT 
INTERPRETATIONS 

FORMS  OF  PLEADING  UNDER  REQUIREMENTS 
of  ACT 

SAFETY  APPLIANCE  AND  HOURS  OF  SERVICE  ACTS 


By 

John   A.   Walgren 

OF  THE  Chicago  Bar 

Associate    Editor   of    Illinois   Annotated   Statutes    and    Continental    Legal 
History  Series 


CHICAGO 

T.   H.    Flood   &  Co.,  Publishers 

1916 


G7{yvnp^ 


19/ (^ 


COPYRIGHT  BY 

T.  H.  FLOOD  &  CO.,  PUBLISHERS 

191G 


TABLE  OF  CONTENTS 

Federal  Employers '  Liability  Act 9 

Constitution — Act  is  in  accord  wdth 15 

Act  of  1906  invalid 18 

State  Law — Act  supersedes 19 

Workmen's  compensation  acts 26 

Interstate  Commerce — Employer  must  be  engaged  in  27 

Employee  must  be  engaged  in  28 

Conductor 37 

Engineer 38 

Brakeman 38 

Fireman 39 

Switchman  39 

Yard  Clerk 40 

Section  Foreman  40 

Inspector  40 

Eoundhouse  employee 41 

Signalman 41 

Truckman 41 

Flagman 41 

Hostler 41 

Pumper 41 

Empty  cars 41 

Work  in  part  interstate ....  43 

Going  to  work 44 

Going  home 44 

Temporary  absence   45 

Loading  and  unloading ....  45 

Track  repairs 46 

Moving  material   47 

Mining  coal 48 

Bridge  work 48 

Steam  shovel  48 

V 


TABLE  OF  CONTENTS 

Weighing 48 

Tearing  down  structure ....  49 

Building  structure 49 

Street  railways 50 

Boats 50 

In  transit 50 

Instrumentalities     51 

Engine  repairs 52 

Cleaning  stencils  52 

Question  for  jury   53 

Agent  or  instrument  causing 
injury  need  not  be  engaged 

in 54 

Employer  and  Employee — Eelation  must  exist 55 

Pullman  car  porter 55 

Lessor  Railroad 56 

Traffic  arrangements 56 

Express  agent 56 

Negligence — Emplo3^er  must  be  guilty  of 57 

Question  for  jury 58 

Of  employee  only  diminishes  damages  . .  59 

Instruction 63 

Employer  liable  for  fellow-servant's. ...  64 

Assumption  of  Risk — Common  law  defense  remains .  .  65 

Instruction 69 

Distinguished     from     contribu- 
tory negligence  72 

Safety  Acts — Violation  of — Excludes  defenses 72 

Electric  cars  74 

Due  diligence   74 

Only  Federal  Statutes 75 

TTonrs  of  Service  Act 75 

Construction-    I'^cdcral  decisions  govci'n 76 

Rules  of 77 

VI 


TABLE  OF  CONTENTS 

Jurisdiction — State  courts  have  concurrent 79 

Removal  of  causes  prohibited  83 

Action — Joinder  of — Permitted   83 

Transitory  85 

Pleading — Requirements  86 

Declaration  or  complaint 89 

Plea  92 

Procedure — Requirements 93 

Rules  of  state  law 93 

Verdict   94 

Evidence   95 

Instruction 96 

Appeal  and  Error — Requirements  97 

U.  S.  Supreme  Court 97 

Limitation — Two  years    99 

Amendment 99 

Exemption — Contracts  for — Void 100 

Action  for  Death — Representative  must  bring 101 

Act  grants  new  cause  of 103 

Beneficiaries 105 

Widow 107 

Aliens 108 

Pecuniary  loss 109 

Measure  of  damages 113 

Expenses 115 

Instruction   115 

Life  insurance 115 

Damages  for  decedent's  pain.  .  .  .116 

Apportionment  of 118 

Allegations  necessary  119 

Forms — Declaration  for  death  of  switchman  for  bene- 
fit of  widow 121 

Allegation  for  death  from  defective  track  for 

sister  124 

Allegation  for  excessive  speed 125 

VII 


TABLE  OF  CONTENTS 

Declaration  for  violation  of  Safety  Appliance 

Act 126 

Allegation  for  death  of  yard  clerk 129 

General  and  special  demurrer 131 

Plea  of  general  issue 131 

Safety  Acts — Wheel  and  train  brakes 132 

Automatic  couplers  132 

Grab  irons 133 

Standard  height  drawbars 133 

Employee  not  assuming  risk 134 

Provisions  extended 134 

Hand  brakes,  sill  steps 134 

Penalties — Injuries  to  employees 135 

Safety  ash  pan 136 

Common  carriers,  railroads,  employees 

defined   136 

Locomotive  boilers 137 

Hours  of  service  limited 138 


VII 


FEDERAL  EMPLOYERS'  LIABILITY  ACT. 

'''An  Act  relating  to  the  Liability  of  Common  Carriers 
by  Railroad  to  Their  Employees  in  Certain  Cases. 

Act  April  22,  1908;  c.  149;  as  amended  by  Act  April 
5, 1910;  c.  145.    ^5  Stat.  6^  et  seq. 

Compiled  Statutes  of  the  United  States;  Vol.  4,  §§ 
8657,  et  seq. 

(Act  1908,  c.  149,  §  1)  Common  carriers  by  rail- 
road enga^ng  in  interstate  or  foreign  commerce,  liable 
for  injuries  to  employees,  from  negligence. 

Every  common  carrier  by  railroad,  while  engaging 
in  commerce  between  any  of  the  several  States  or  Terri- 
tories, or  between  any  of  the  States  and  Territories,  or 
between  the  District  of  Columbia  and  any  of  the  States 
or  Territories,  or  between  the  District  of  Columbia  or 
any  of  the  States  or  Territories  and  any  foreign  nation 
or  nations,  shall  be  liable  in  daniages  to  any  person  suf- 
fering injury  while  he  is  employed  by  such  carrier  in 
such  commerce,  or,  in  case  of  the  death  of  such  employee, 
to  his  or  her  personal  representative,  for  the  benefit  of 
the  surviving  widow  or  husband  and  children  of  such 
employee;  and,  if  none,  then  of  such  employee's  parents; 
and,  if  none,  then  of  the  next  of  kin  dependent  upon  such 
employee,  for  such  injury  or  death  resulting  in  whole  or 
in  part  from  the  negligence  of  any  of  the  officers,  agents 
or  employees  of  such  carrier,  or  by  reason  of  any  defect 
or  insufficiency,  due  to  its  negligence,  in  its  cars,  engines, 
appliances,  machinery,  track,  roadbed,  docks,  boats, 
wharves,  or  other  equipment.     (35  Stat.  65.) 


FEDERAL  EMPLOYERS'  LIABILITY  ACT 

(Act  1908,  c.  149,  §  2.)  Common  carriers  in  Terri- 
tories, possessions,  etc.,  likewise  liable. 

Every  common  carrier  by  railroad  in  the  Territories, 
the  District  of  Columbia,  the  Panama  Canal  Zone,  or 
other  possessions  of  the  United  States  shall  be  liable  in 
damages  to  any  person  suffering  injury  while  he  is  em- 
ployed by  such  carrier  in  any  of  said  jurisdictions,  or,  in 
case  of  the  death  of  such  employee,  to  his  or  her  personal 
representative,  for  the  benefit  of  the  surviving  Avidow  or 
husband  and  children  of  such  employee;  and,  if  none, 
then  of  such  employee's  parents;  and,  if  none,  then  of 
the  next  of  kin  dependent  upon  such  employee,  for  such 
injury  or  death  resulting  in  whole  or  in  part  from  the 
negligence  of  any  of  the  officers,  agents,  or  employees  of 
such  carrier,  or  by  reason  of  any  defect  or  insufficiency, 
due  to  its  negligence,  in  its  cars,  engines,  appliances, 
machinery,  track,  roadbed,  docks,  boats,  wharves,  or 
other  equipment  (35  Stat.  65.) 


10 


FEDERAL  EMPLOYERS'   LIABILITY  ACT 

(Act  1908,  c.  149,  §  3)  Contributory  negligence  not 
to  bar  recovery,  but  diminish  damages,  except  where 
statute  violated  by  carrier. 

In  all  actions  hereafter  brought  against  any  such 
common  carrier  by  railroad  under  or  by  virtue  of  any 
of  the  provisions  of  this  Act  to  recover  damages  for  per- 
sonal injuries  to  an  employee,  or  where  such  injuries 
have  resulted  in  his  death,  the  fact  that  the  employee 
may  have  been  guilty  of  contributory  negligence  shall 
not  bar  a  recovery,  but  the  damages  shall  be  diminished 
by  the  jury  in  proportion  to  the  amount  of  negligence 
attributable  to  such  employee:  Provided,  That  no  such 
employee  who  may  be  injured  or  killed  shall  be  held  to 
have  been  guilty  of  contributory  negligence  in  any  case 
where  the  violation  by  such  common  carrier  of  any  stat- 
ute enacted  for  the  safety  of  employees  contributed  to 
the  injury  or  death  of  such  employee.    (35  Stat.  66.) 


11 


FEDERAL  EMPLOYERS'  LIABILITY  ACT 

(Act  1908,  c.  149,  §  4.)  Assumption  of  risks  of  em- 
ployment, no  defense  where  violation  of  statute  con- 
tributed to  injury. 

In  any  action  brought  against  any  common  carrier 
under  or  by  virtue  of  any  of  the  provisions  of  this  Act 
to  recover  damages  for  injuries  to,  or  the  death  of,  any 
of  its  employees,  such  employee  shall  not  be  held  to  have 
assumed  the  risks  of  his  employment  in  any  case  where 
the  violation  by  such  common  carrier  of  any  statute 
created  for  the  safety  of  employees  contributed  to  the 
injury  or  death  of  such  employee.     (35  Stat.  66.) 

(Act  1908,  c.  149,  §  5.)  Contracts  of  exemption 
from  liability  to  such  extent  void;  Set-offs. 

Any  contract,  rule,  regulation  or  device  whatsoever, 
the  purpose  or  intent  of  which  shall  be  to  enable  any 
common  carrier  to  exempt  itself  from  any  liability 
created  by  this  Act,  shall  to  that  extent  be  void:  Pro- 
vided, That  in  any  action  brought  against  any  such  com- 
mon carrier  under  or  by  virtue  of  any  of  the  pro\dsions 
of  this  Act,  such  common  carrier  may  set  off  therein  any 
sum  it  has  contributed  or  paid  to  any  insurance,  relief 
benefit,  or  indemnity  that  may  have  been  paid  to  the  in- 
jured employee  or  the  person  entitled  thereto  on  account 
of  the  injury  or  death  for  which  said  action  was  brought. 
(35  Stat.  66.) 


12 


FEDERAL  EMPLOYERS'  LIABILITY  ACT 

Act  April  22,  1908;  c.  149,  §  6;  as  amended  Act  April 
5, 1910,  c.  143,  §  1.  Action  to  be  commenced  in  two  years. 
Jurisdiction  of  Federal  and  State  Courts  concurrent;  no 
removal. 

No  action  shall  be  maintained  under  this  Act  unless 
commenced  within  two  years  from  the  day  the  cause  of 
action  accrued. 

Under  this  Act  an  action  may  be  brought  in  a  (circuit 
court)  of  the  United  States  in  tlie  district  of  the  residence 
of  the  defendant,  or  in  which  the  cause  of  action  arose, 
or  in  which  the  defendant  shall  be  doing  business  at  the 
time  of  commencing  such  action.  The  jurisdiction  of  the 
courts  of  the  United  States  under  this  x\ct  shall  be  con- 
current with  that  of  the  courts  of  the  several  States,  and 
no  case  arising  under  this  Act  and  brought  in  any  state 
court  of  competent  jurisdiction  shall  be  removed  to  any 
court  of  the  United  States.    (35  Stat.  66.  36  Stat.  291.) 

(Amendment  added  second  paragraph.) 

(Circuit  Court  jurisdiction  transferred  to  District 
Courts  by  Jud.  Code  §§  289-291.) 

(Act  1908,  c.  149,  §  7.)  Term  "common  carrier"  to 
include  receivers. 

The  term ' '  common  carrier ' '  as  used  in  this  Act  shall 
include  the  receiver  or  receivers  or  other  persons  or  cor- 
porations charged  with  the  duty  of  the  management  and 
operation  of  the  business  of  a  common  carrier.  (35  Stat. 
66.) 


13 


FEDERAL  EMPLOYERS'  LIABILITY  ACT 

(Act  1908,  c.  149,  §  8)  Duty  or  liabiUty  under  other 
Acts  not  impaired. 

Nothing  in  this  Act  shall  be  held  to  limit  the  duty  or 
liability  of  common  carriers  or  to  impair  the  rights  of 
their  employees  under  any  other  Act  or  Acts  of  Congress 
or  to  affect  the  prosecution  of  any  pending  proceeding  or 
right  of  action  under  the  Act  of  Congress  entitled  "An 
Act  relating  to  liability  of  common  carriers  in  the  Dis- 
trict of  Columbia  and  Territories  and  to  common  carriers 
engaged  in  commerce  between  the  States  and  between  the 
States  and  foreign  nations  to  their  employees,"  ap- 
proved June  eleventh,  nineteen  hundred  and  six.  (35 
Stat.  66.) 

Act  of  April  22,  1908,  c.  149  §  9,  as  amended  Act 
April  5,  1910,  c.  143,  §  2)  Survival  of  right  of  action  of 
injured  employee. 

Any  right  of  action  given  by  this  Act  to  a  person 
suffering  injury  shall  survive  to  his  or  her  personal  rep- 
resentative, for  the  benefit  of  the  surviving  widow  or 
husband  and  children  of  such  employee,  and,  if  none,  then 
of  such  employee's  parents;  and,  if  none,  then  of  the  next 
of  kin  dependent  upon  such  employee,  but  in  such  cases 
there  shall  be  only  one  recovery  for  the  same  injury.  (36 
Stat.  291.)  (This  section  was  added  as  §  9  of  the  Act  of 
1908  by  amending  Act  of  1910,  c.  143,  §  2.) 


14 


CONSTITUTION— ACT  IS  IN  ACCORD  WITH 

Constitution — Act  is  in  accord  with — 

Employers'  Liability  Act  of  Congress  of  April  22, 
1908,  and  Amendment  of  April  5,  1910,  are  in  harmony 
with  and  not  repugnant  to  the  Constitution  of  the  United 
States : — 

Mondou  V  Neiv  York,  N.  H.  &  H.  R.  R.;  223  U.  S. 

1 ;  32  Sup.  Ct.  Rep.  169 ;  56  L.  Ed.  327 ;  38  L. 

R.  A.  (N.  S.)  44;  rev:  82  Conn.  373;  73  Atl. 

Rep.  762. 
Illinois  Central  R.  R.  v  Behrens,  233  U.  S.  473 ; 

34  Sup.  Ct.  648;  58  L.  Ed.  105. 
Michigan  Central  RR.  v  Vreeland,  227  U.  S.  59 ; 

33  Sup.  Ct.  192 ;  57  L.  Ed.  192 ;  rev :  189  Fed. 

495. 
PJiiladelpMa  &c  RR.  v  Scliuhert,  224  U.  S.  603; 

32  Sup.  Ct.  589 ;  56  L.  Ed.  9. 
Chicago  &c  RR.  v  McGuire,  229  U.  S.  549;  33 

Sup.  Ct.  259;  55  L.Ed.  238. 
First  Employers'  Liability  Cases,  207  U.  S.  463; 

28  Sup.  Ct.  143;  52  L.  Ed.  297. 
Second  Employers'  Liahility  Cases,  223  U.  S. 

603. 
El  Paso  &c  Ry.  v  Gutierrez,  215  U.  S.  87. 
Kelly's  Admx.  v  Chesapeake  &c  RR.,  201  Fed. 

Rep.  602. 
Cain  V  Southern  Pac.  Ry.,  199  Fed.  211. 
Walsh  V  New  York  &c  RR.,  173  Fed.  494. 
St.  Louis  &c  RR.  V  Conly,  187  Fed.  949. 
Zikos  V  Oregon  &c  Co.,  179  Fed.  893. 
Owens  V  Chicago  &c  Ry.,  79  Fed.  893. 


L5 


CONSTITUTION— ACT  IS  IN  A  "CORD  WITH 

The  Supreme  Court  of  the  United  States,  in  uphold- 
ing the  Act,  said : 

"The  departures  from  the  common  law  made  by  the  portions  of 
the  Act  against  which  objection  is  leveled  are  these:  (a)  The  rule  that 
the  negligence  of  one  employe  resulting  in  injury  to  another  was  not 
to  be  attributed  to  their  common  employer  is  displaced  by  a  rule  im- 
posing upon  the  employer  responsibility  for  such  injury,  as  was 
done  at  comm.on  law  when  the  injured  person  was  not  an  employe; 
(b)  the  rule  exonerating  an  employer  from  liability  for  injury  sus- 
tained by  an  employe  through  the  concurring  negligence  of  the  em- 
ployer and  employe  is  abrogated  in  all  instances  where  the  employer's 
violation  of  a  statute  enacted  for  the  safety  of  his  employes  con- 
tributes to  the  injury,  and  in  other  instances  is  displaced  by  the  rule 
of  comparative  negligence,  whereby  the  exoneration  is  only  from 
a  proportional  part  of  the  damages  corresponding  to  the  amount  of 
negligence  attributable  to  the  employe;  (c)  the  rule  that  an  employe 
was  deemed  to  assume  the  risk  of  injury,  even  if  due  to  the  employer's 
negligence,  where  the  employe  voluntarily  entered  or  remained  in  the 
service  with  an  actual  or  presumed  knowledge  of  the  conditions  out 
of  which  the  risk  arose,  is  abrogated  in  all  instances  where  the  em- 
ployer's violation  of  a  statute  enacted  for  the  safety  of  his  employes 
contributed  to  the  injury;  and  (d)  the  rule  denying  a  right  of  action 
for  the  death  of  one  person  caused  by  the  wrongful  act  or  neglect  of 
another  is  displaced  by  a  rule  vesting  such  right  of  action  in  the  per- 
sonal representatives  of  the  deceased  for  the  benefit  of  designated 
relatives.      *      »      *      * 

"A  person  has  no  property,  no  vested  interest,  in  any  rule  of  the 
common  law.      ♦       *       *       * 

"The  natural  tendency  of  the  changes  described  is  to  impel  the 
carriers  to  avoid  or  prevent  the  negligent  acts  or  omissions  which  are 
made  the  basis  of  the  rights  of  recovery  which  the  statute  creates 
and  defines;  and,  as  whatever  makes  for  that  end  tends  to  promote 
the  safety  of  employes  and  to  advance  the  commerce  in  which  they 
are  engaged,  we  entertain  no  doubt  that  in  making  those  changes 
Congress  acted  within  the  limits  of  the  discretion  confided  to  it  by 


16 


CONSTITUTION— ACT  IS  IN  ACCORD  WITH 

the  Constitution.  We  are  not  unmindful  that  the  end  was  being 
measurably  attained  through  the  remedial  legislation  of  the  several 
States,  but  that  legislation  has  been  far  from  uniform,  and  it  un- 
doubtedly rested  with  Congress  to  determine  whether  a  national  law 
operating  uniformly  in  all  the  States  upon  all  carriers  by  railroad 
engaged  in  interstate  commerce,  would  better  subserve  the  needs  of 
that  commerce. 

"Nor  is  it  a  valid  objection  that  the  act  embraces  instances  when 
the  causal  negligence  is  that  of  an  employe  engaged  in  intra-state 
commerce;  for  such  negligence,  when  operating  injuriously  upon  an 
employe  engaged  in  interstate  commerce,  has  the  same  eifect  upon 
that  commerce  as  if  the  negligent  employe  was  also  engaged  therein. 

"Next  in  order  is  the  objection  that  the  provision  in  Sec.  5,  declar- 
ing void  any  contract,  rule,  regulation  or  device,  the  purpose  or 
intent  of  which  is  to  enable  the  carrier  to  exempt  itself  from  the 
liability  which  the  Act  creates,  is  repugnant  to  the  Fifth  Amendment 
of  the  Constitution  as  an  unwarranted  interference  with  the  liberty 
of  contract.       *       *  *     *       If  Congress  possesses  the  power  to 

impose  that  liability,  which  we  here  hold  that  it  does,  it  also  possesses 
the  power  to  insure  its  efficacy  by  prohibiting  any  contract,  rule,  regu- 
lation or  device  in  evasion  of  it. 

"The  duties  of  common  carriers  in  respect  of  the  safety  of  their 
employes,  while  both  are  engaged  in  commerce  among  the  States,  and 
the  liability  of  the  former  for  injuries  sustained  by  the  latter,  while 
both  are  so  engaged,  have  a  real  or  substantial  relation  to  such  com- 
merce, and  therefore  are  within  the  range  of  this  power.  *  *  ♦ 
Congress  may  legislate  about  the  agents  and  instruments  of  interstate 
commerce,  and  about  the  conditions  under  which  those  agencies  and 
instruments  perform  the  work  of  interstate  commerce,  whenever  such 
legislation  bears,  or  in  the  exercise  of  a  fair  legislative  discretion  can 
be  deemed  to  bear  upon  the  reliability  or  promptness  or  economy  or 
security  or  utility  of  the  interstate  commerce  act." 

Second  Liability  Cases,  223  U.  S.  1. 


17 


CONSTITUTION— ACT  IS  IN  ACCORD  WITH 

Congress  has  power  to  regulate  liability  of  carrier, 
whether  the  particular  service  being  performed  at  the 
time  of  injury,  isolatedly  considered,  is  in  interstate  or 
intra-state  commerce. 

Illinois  C.  R.  R.  v  Behrens,  233  U.  S.  473. 
Act  makes  no  unjust  discrimination  in  precluding 
removal  of  causes. 

Kelly's  Admx.  v  Chesapeake  &c  Ry.,  201  F.  602. 
Act  of  June  11,  1906,  was  declared  invalid  because  its 
provisions  regarding  interstate  commerce  were  so  inter- 
mingled with  intra-state  matters  as  to  render  entire  Act 
void. 

"Concluding,  as  we  do,  that  the  Statute  (Act  of  June  11,  1906), 
whilst  it  embraces  subjects  within  the  authority  of  Congress  to  regu- 
late commerce,  also  includes  subjects  not  within  its  constitutional 
power,  and  that  the  two  are  so  interblended  in  the  statute  that  they 
are  incapable  of  separation,  we  are  of  the  opinion  that  the  courts  be- 
low rightly  held  the  Statute  to  be  repugnant  to  the  Constitution  and 
non-enforcible." 

First  Employer's  Liability  Cases,  207  U.  S.  463. 
Chicago  &c  Ry.  v  Hackett,  228  U.  S.  559. 
Hozie  V  New  York  &c  RR.,  82  Conn.  352;  73  Atl. 

754. 
Howard  v  Illinois  Central  RR.,  207  U.  S.  463; 
28  S.  C.  141 ;  52  L.  Ed.  297. 
Act  of  1906  held  repugnant  to  Constitution  of  Okla- 
homa and  locally  inapplicable. 

Chicago  &c  Ry.  v  noUiday,  Okla.,  145  Pac.  786. 

"In  the  aspect  of  the  Act  of  1906,  Congress  proceeded  within  its 
constitutional  power,  and  with  the  intention  to  regulate  the  matter  in 
the  District  of  Columbia  and  Territories,  irrespective  of  the  inter- 
state commerce  feature  of  the  act." 

El  Paso  &c  Ry.  v  Gutierreg,  Admr.,  215  U.  S.  87 ; 
Aff.  117  S.  W.  426. 


18 


STATE  LAW— ACT  SUPERSEDES 

State  Law — Act  supersedes — 

Act,  wherever  applicable,  supersedes  constitutions, 
statutes  and  common  law  of  the  States,  and  affords  the 
exclusive  remedy: 

Taylor  v  Taylor,  232  U.  S.  363;  34  L.  Ed.  350; 

rev :  204  N.  Y.  135 ;  97  N.  E.  Rep.  502 ;  which 

affd:  144  App.  Div.  634;  129  N.  Y.  S.  378. 
Seaboard  Air  Line  Ry.  v  Horton,  233  U.  S.  492; 

34  S.  C.  635 ;  58  L.  Ed.  1062. 
Gulf  &c  Ry.  V  McGinnis,  228  U.  S.  173;  33  S.  C. 

426;57L.  Ed.  785. 
Michigan  Central  Ry.  v  Vreeland,  227  U.  S.  59; 

33  S.  C.  192;  57  L.  Ed.  417;  Ann.  Cas.  1914 

C.  176. 
American  RR.  v  Didricksen,  227  U.  S.  145 ;  33  S. 

C.  224;  57  L.Ed.  456. 
Missouri  &c  Ry.  v  Wulf,  226  U.  S.  570;  33  S.  C. 

135 ;  57  L.  Ed.  355 ;  Ann.  Cas.  1914  B.  134. 
Second  Employers'  Liability  Cases,  223  U.  S.  1; 

32  S.  C.  169;  56  L  .Ed.  327;  38  L.  R.  A.  (N. 

S.)  44. 
Toledo  &c  Ry.  v  Slavln,  236  U.  S.  454;  35  S.  C. 

306;  Rev:  88  Oh.  St.  536. 
Kansas  City  S.  Ry.  v  Leslie,  238  U.  S.  599. 
North  Carolina  RR.  v.  Zachary,  232  U.  S.  248. 
St.  Louis  &c  Ry.  v  Hesterly,  228  U.  S.  70;  33  S. 

C.  703;  rev:  98  Ark.  240;  57  S.  E.  Rep.  1031. 
St.  Louis  &c  Ry.  v  Scale,  229  U.  S.  156. 
Pedersen  v  Delaware  kc  Ry.  229  U.  S.  146. 
Central  Vermont  Ry.  v  White's  Admx.,  238  U. 

S.  507;  Aff.  87  Vt.  330. 
Grand  Trunk  Ry.  v  Lindsay,  233  IT.  S.  42. 
Wabash  Ry.  v  Hayes,  234  U.  S.  86. 
Delaware  &c  Ry.  v  Troxell,  200  Fed.  44;  118  C. 

C.  A.  272. 

19 


STATE  LAW— ACT  SUPERSEDES 

Delaware  etc.  Ry.  v  Yurkonis,  220  Fed.  429 ;  Aff. 

213  Fed.  537;  Appeal  dismissed  238  U.  S. 

439. 
Taylor  v  Southern  Ry.,  178  Fed.  380. 
Cound  V  Atchison  &c  Ry.,  173  Fed.  527. 
Clark  V  Southern  Ry.,  175  Fed.  122. 
DeAtley  v  Chesapeake  &c  Ry.,  201  Fed.  602. 
Kamhoris  v  Oregon  kc  Ry.,  . .  Or.  . . ;  146  Pac. 

1097. 
South  Covington  &c  Ry.  v  Finan's  Admx.,  153 

Ky.  340;155S.W.  742. 
Midland  Valley  RR.  v  Ennis,  . .  Ark.  . . ;  159  S. 

W.  214. 
Wagner  v  Chicago  &c  Ry.,  265  111.  245 ;  106  N.  E. 

809;  Aff.  180  111.  App.  196;  Keh.  den.  107  N. 

E.  673. 
Vandalia  RR.  v  Stringer,  . .  Ind.  . . ;  106  N.  E. 

865. 
Ex  Parte  Coast  Line  Ry.,  . .  Ala.  (1914)  67  So. 

Rep.  256. 
Gee  V  Lehigh  Valley  RR.,  163  App.  Div.  274; 

148  N.  Y.  S.  882. 
Southern  Ry.  v  Howerton,  Ind.  1914,  105  N.  E. 

1025 ;  Reh.  den.  106  N.  E.  369. 
Erie  RR.  v  Welsh,  Ohio  1913,  105  N.  E.  189. 
Miller  v  Kansas  City  Ry.,  180  Mo.  App.  371; 

168  S.  W.  336. 
liogarty  v  Phila.  Slc  RR.,  245  Pa.  St.  443;  91 

App.  854. 
Oherlin  v  Oregon  &c  Nav.  Co.,  142  Pac.  554. 
Penny  v  Neiv  Orleans  &c  RR.,  135  La.  962;  66 

So.  Rep.  313. 
Michigan  Central  RR.  v.  Michigan  RR.  Com., 

148  N.  AV.  800. 

20 


STATE  LAW— ACT  SUPERSEDES 

Rohinson  v  Louisville  &c  Ry.,  160  Ky.  235 ;  169 

S.  W.  831. 
Armhruster  v  Chicago  R.  I.  &  P,  Ry.,  147  N.  Y. 

337. 
Devine  v  Chicago,  R.  I.  &  P.  Ry.,  185  111.  App. 

488;  Affd.  107  N.  E.  595. 
Lauer  v  Northern  Pac.  Ry.,  145  Pac.  606. 
Louisville  &c  Ry.  v.  Kemp.,  140  Ga.  657 ;  79  S.  E. 

558. 
McGarvey's    Guardian   v   McGarvey's   Admr., 

163  Ky.  242;  173  S.  W.  Rep.  765. 
Corhett  v  Boston  &c  Ry.,  219  Mass.  351 ;  107  N. 

E.  60. 
Thompson  v  Wabash  RR.,  Mo.  1914,  171  S.  W. 

364. 
Melzner  v  Northern  Pac.  Ry.,  46  Mont.  277 ;  127 

Pac.  1002. 
Rich  V  St.  Louis  &c  Ry.,  166  Mo.  App.  379;  148 

S.  W.  1011. 
Eastern  Ry.  of  New  Mexico  v  Ellis,  Texas  1913, 

153  S.  W.  701. 
Copper  River  &c  Ry.  v  Henney,  211  Fed.  459. 
Cole  V  Atchison  &c  Ry.,  92  Kan.  132;  139  Pac. 

1157. 
Fulgham  v  Midland  Ry.,  167  Fed.  660. 
The  Passaic,  190  Fed.  644. 
Southern  Pac.  Ry.  v  McGinnis,  174  Fed.  649. 
Missouri  &c  Ry.  v  Lenahan,  135  Pac.  383. 
Kayvibroris  v  Oregon  &c  Co.,  146  Pac.  1097. 
Cincinnati  &c  Ry.  v  Bonham,  130  Tenn.  435 ;  171 

S.  W.  79. 
Rivera  v  Atchison  &c  Ry.,  149  S.  W.  Eep.  223. 
Burtnett  v.  Erie  Ry.,  144  N.  Y.  S.  969 ;  159  App. 

Div.  712. 
White  V.  Central  Vt.  RR.,  89  Atl.  618. 
Niles  V.  Central  Vt.  RR.,  89  Atl.  629. 

21 


STATE  LAW— ACT  SUPERSEDES 

Southern  Ry.  v  Jacobs,  81  S.  E.  Rep.  99. 
VaugJian  v  St.  Louis  &c  By.,  177  Mo.  App.  155 ; 
164  S.  W.  144. 


22 


STATE  LAW— ACT   SUPERSEDES 

"By  this  Act  Congress  has  undertaken  to  cover  the  subject  of  the 
liability  of  railroad  companies  to  their  employes  while  engaged  in 
interstate  commerce.  This  exertion  of  power  which  is  granted  in  ex- 
press terms  must  supersede  all  legislation  over  the  same  subject  by 
the  States.  *  *  *  j^  therefore  follows  that  in  respect  of  state 
legislation  prescribing  the  liability  of  such  carriers  for  injuries  to 
their  employes  while  engaged  in  interstate  commerce  this  Act  is 
paramount  and  exclusive,  and  must  remain  so  until  Congress  shall 
again  remit  the  subject  to  the  reserved  police  power  of  the  States." 

Mich.  Cent.  RR.  Co.  v  Vreeland,  227  U.  S.  59. 
"It  is  settled  that  since  Congress,  by  the  Act  of  1908,  took  posses- 
sion of  the  field  of  the  employers'  liability  to  employes  in  interstate 
transportation  by  rail,  all  state  laws  upon  the  subject  are  super- 
seded." 

Seaboard  Air  Line  v  Horton,  233  U.  S.  492;  rev: 

162  N.  C.  77. 
Citing  Second  Employers'  Liability  Cases,  223 
U.  S.  155. 

"In  order  to  bring  the  case  within  the  terms  of  the  Federal  Act 
defendant  must  have  been  at  the  time  of  the  occurrence  in  question, 
engaged  as  a  common  carrier  in  interstate  commerce,  and  plaintiff's 
intestate  must  have  been  employed  by  said  carrier  in  such  commerce. 
If  these  facts  appeared,  the  Federal  Act  governed,  to  the  exclusion  of 
the  statutes  of  the  state." 

North  Carolina  RR.  v.  Zachary,  232  U.  S.  248; 
rev.  156  N.  C.  496. 


23 


STATE  LAW— ACT  SUPERSEDES 

The  Act  governs  and  must  be  enforced  even  where 
employe  and  railroad  fail  to  plead  it. 

"If,  without  amendment,  the  case  proceeded  with  the  proof  show- 
ing that  the  right  of  the  plaintiff  and  the  liability  of  the  defendant 
had  to  be  measured  by  the  Federal  statute,  it  was  not  error  to  apply 
and  enforce  the  provisions  of  that  law." 

Toledo  &c  RR.  v  Slavin,  236  U.  S.  454;  rev.  88 

Oh.  St.  536. 
St.  Louis  &c  Ry.  v  Seale,  229  U.  S.  156. 
Even  though  intra-state  operations  be  involved. 

Flanders  v  Georgia  8.  &c  Ry.,  67  So.  68. 
Is  supreme  law  of  the  land  and  excludes  conflicting 
state  law. 

Toledo  &c  Ry,  v  Slavin,  236  U.  S.  454. 
Excludes  state  and  common  law. 

Easter  v  Virginia  Ry.,  86  S.  E.  37. 

Shannon  v  Boston  &c  RR.,  77  N.  H.  349;  92  Atl. 

167. 
Hawkins  v  St.  Louis  &c  Ry.,  174  S.  W.  Rep.  129. 
Erie  RR.  v  Welsh,  105  N.  E.  Rep.  189. 
Hogarty  v  Philadelphia  Ry.,  245  Atl.  443. 
Excludes  conflicting  constitutions  and  statutes. 
St.  Louis  &c  Ry.  v  Snowden,  149  Pac.  1083. 
Exclusive  where  applicable. 

Vickery  v  Netv  London  &c  Ry.,  87  Conn.  634 ;  89 
Atl.  277. 
Controls  when  complaint  states  a  case  under  Act  and 
also  under  state  law,  and  former  is  alone  applicable. 
Peck  V  Boston  &c  Ry.,  223  Fed.  448. 
Precludes  action  under  state  law. 

Dewberry  v  Southern  Ry.,  175  Fed.  307. 
Act  must  be  enforced  by  state  court  although  not  in 
harmony  with  local  law. 

Gee  V  Lehigh  Valley  RR.,  148  N.  Y.  S.  882;  163 
App.  Div.  274. 


24 


STATE  LAW— ACT  SUPERSEDES 

Act  covers  every  act  of  negligence  for  which  railroad 
might  be  liable  to  employe  engaged  in  interstate  com- 
merce. 

DeAtley  v  Chesapeake  &c  RR.,  201  Fed.  591. 
If  a  liability  does  not  exist  under  Act,  it  does  not 
exist  by  virtue  of  any  state  legislation  on  the  same  sub- 
ject. 

Michigan  Central  RR.  v  Vreeland,  227  U.  S.  59. 
Miller  v  Kansas  City  &c  Ry.,  180  Mo.  App.  371 ; 
168  S.  W.  336. 
Provision  in  a  State  constitution  against  defense  of 
assumed  risk  is  overcome. 

Bramlett  v  Southern  Ry.,  98  S.  C.  319;  82  S.  E. 
501. 
Act  controls  although  its  provisions  have  not  been 
pleaded  or  pressed. 

Grand  Trunk  Ry.  v  Lindsay,  233  U.  S.  42 ;  34  S. 
C.  581;  201  Fed.  836;  120  C.  C.  A.  166. 
Is  only  basis  of  recovery. 

Louisville  &c  Ry.  v  Strange' s  Admx.,  156  Ky. 
439;  161  S.  W.  239. 
A  state  law  interfering  is  not  invalid  but  inopera- 
tive while  Act  is  in  force. 

Houston  &c  Ry.  v  Bright,  228  U.  S.  559. 
Chicago  &c  Ry.  v  Hackett,156  S.  W.  Rep.  304. 


25 


STATE  LAW— ACT  SUPERSEDES 

Workmen's  compensation  acts  are  not  applicable  to 
cases  of  employes  injured  while  engaged  in  interstate 
commerce  traffic,  and  no  recovery  may  be  had  under 
them. 

Staleij  V  Illinois  Central  Ry.,  111.  109  N.  E.  342; 

Rev.  186  111.  App.  593. 
Smith  V  Industrial  Accident  Com.,  147  Pac.  600. 
Rannsville  v  Central  RR.,  N.  J.  94  Atl.  Rep.  392. 
Winfeld  v  New  York  Central  Rij.,  153  N.  Y.  S. 

499. 
Southern  Pac.  Ry.  v  Pissherg,  Col.  151  Pac.  Rep. 
277. 
Act  precludes  recovery  under  Workmen's  Compen- 
sation Act  by  employe  whose  injury  was  not  caused  by 
master's  negligence,  where  the  facts  bring  the  case  with- 
in interstate  commerce. 

Smith  V  Industrial  Accident  Commission  of  Cal- 
ifornia,  147  Pac.  600. 


26 


INTERSTATE  COM.— EMPLOYER  MUST  BE  ENGAGED  IN 

Interstate  Commerce — Employer  must  be  engaged  in — 

"In  order  to  bring  the  case  within  the  terms  of  the  Federal  Act, 
defendant  must  have  been  at  the  time  of  the  occurrence  in  question 
engaged  as  a  common  carrier  in  interstate  commerce,  ''and  plaintiff's 
intestate  must  have  been  employed  by  said  carrier  in  such  commerce. 
If  these  facts  appear,  the  Federal  act  governs,  to  the  exclusion  of 
the  statutes  of  the  state." 

North  Carolina  R.  R.  Co.  v  Zachary,  232  U.  S. 

248. 
Second  Einployers'  Liability  Cases,  223  U.  S.  1. 
St.  Louis  &  San  Francisco  Ry  v  Scale,  229  U. 

S.  156. 
Pederson  v  Delaware  &c  Ry.  229  U.  S.  146 ;  33  S. 

Ct.  648;  57  L.  Ed.  1125;  Ann.  Cas.  1914,  C. 

153. 
Illinois  Central  Ry.  v  Behrens,  233  U.  S.  473 ;  34 

S.  Ct.  646 ;  58  L.  Ed.  1051 ;  Ann.  Cas.  1914, 

C.  163. 
Erie  RR.  v  Jacobus,  211  Fed.  335. 
Zikos  V  Oregon  &c  Ry.  179  Fed.  893. 
Central  Ry  v  Colasurdo,  192  Fed.  901;  113  C.  C. 

A.  379. 
Montgomery  v  Southern  Pac.  Ry.,  64  Or.  597; 

131  Pac.  507;  47  L.  K.  A.  (N.  S.)  13. 
Miller  v  Kansas  City  &c  Ry.,  180  Mo.  App.  371 ; 

168  S.  W.  336. 
Horton  v  Oregon  &c  Ry.,  72  Wash.  503 ;  130  Pac. 

897;  47  L.  R.  A.  (N.  S.)  8. 
Illinois  Central  RR.  v  Rogers,  221  Fed.  52. 
Darr  v  Baltimore  &c  Ry.,  197  Fed.  665. 
Gordon  v  Neiv  Orleans  &c  Ry.,  64  So.  Rep.  1014. 
St.  Louis  &c  Ry.  v  Hesterly,  135  S.  W.  Rep.  874. 
Charleston  &c  Ry.  v  Anchors,  73  S.  E.  Rep.  551. 
Atchison  V  Pitts,  145  Pac.  Rep.  1148. 
Neil  V  Idaho  &c  Ry.,  22  Idaho  74;  125  Pac.  331. 

"The  term  'commerce'  comprehends  more  than  the  mere  exchange 
of  goods.  It  embraces  commercial  intercourse  in  all  its  branches,  in- 
cluding transportation  of  passengers  and  property  by  common  car- 
riers, whether  carried  on  by  water  or  land." 

Second  Employers'  Liability  Cases,  223  U.  S.  1, 
46. 

27 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

Interstate  Commerce — Employee  must  be  engaged  in — 

"Giving  to  the  words  'suffering  injury  while  he  is  employed  by 
such  carrier  in  such  commerce'  their  natural  meaning,  as  we  think 
must  be  done,  it  is  clear  that  Congress  intended  to  confine  its  action 
to  injuries  occurring  when  the  particular  service  in  which  the  em- 
ploye is  engaged  is  a  part  of  interstate  commerce.  The  true  test 
always  is:  Is  the  work  in  question  a  part  of  the  interstate  commerce 
in  which  the  carrier  is  engaged?  The  true  test  is  the  nature  of  the 
work  being  done  at  the  time  of  injury." 

Illinois  Central  RR.  v  Belirens,  233  U.  S.  473. 
Mondou  V  Neiv  York  &c  R.  R.,  223  U.  S.  1. 
Seaboard  &c  Ry.  v  Moon,  228  U.  S.  433. 
St.  Louis  &c  Ry.  v  Seale,  229  U.  S.  156. 
North  Carolina  R.  R.  v  Zachary,  232  U..  S.  248; 
Grand  Trunk  &>c  Ry.  v  Lindsay,  223  U.  S.  42. 


28 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

"The  scope  of  the  statute  is  so  bi-oad  that  it  covers  a  vast  field 
about  which  there  can  be  no  discussion.  But  owing  to  the  fact  that, 
during  the  same  day,  railroad  employes  often  and  rapidly  pass  from 
one  class  of  employment  to  another,  the  courts  are  constantly  called 
upon  to  decide  those  close  questions  where  it  is  difficult  to  define  the 
line  which  divides  the  state  from  interstate  business.  The  matter  is 
not  to  be  decided  by  considering  the  physical  position  of  the  employe 
at  the  moment  of  injury.  If  he  is  hurt  in  the  course  of  his  employ- 
ment while  going  to  a  car  to  perform  an  interstate  duty,  or  if  he  is 
injured  while  preparing  an  engine  for  an  interstate  trip,  he  is  enti- 
tled to  the  benefits  of  the  Federal  Act,  although  the  accident  occurred 
prior  to  the  actual  coupling  of  the  engine  to  the  interstate  cars. 

"This  case  is  entirely  different  from  that  of  Illinois  Central  R.  R. 
V  Behrens,  233  U.  S.  473,  for  there  the  train  of  empty  cars  was  run- 
ning between  two  points  in  the  same  state.  The  fact  that  they  might 
soon  thereafter  be  used  in  interstate  business  did  not  affect  their 
intra-state  status  at  the  time  of  the  injury;  for,  if  the  fact  that  a 
car  had  been  recently  engaged  in  interstate  commerce,  or  was  expected 
soon  to  be  used  in  such  commerce,  brought  them  within  the  class  of 
interstate  vehicles,  the  effect  would  be  to  give  every  car  on  the  line 
that  character.  Each  case  must  be  decided  in  the  light  of  the  par- 
ticular facts  with  a  view  of  determining  whether  at  the  time  of  the 
injury,  the  employe  is  engaged  in  interstate  business,  or  in  an  act 
which  is  so  directly  and  immediately  connected  with  such  business  as 
substantially  to  form  a  part  or  a  necessary  incident  thereof." 

Neiv  York  Central  &c  R.  B.  v  Carr,  238  U.  S. 
260;  Aff.  158  App.  Div.  891. 


29 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

"It  is  argued  that  because  the  deceased  fireman  had  not  pre- 
viously participated  in  any  movements  of  interstate  freight,  and  the 
through  cars  had  not  as  yet  been  attached  to  his  engine,  his  employ- 
ment in  interstate  commerce  was  still  in  futuro.  It  seems  to  us, 
however,  that  his  acts  in  inspecting,  oiling,  firing  and  preparing  his 
engine  for  the  trip  were  acts  performed  as  a  part  of  interstate  com- 
merce, and  the  circumstance  that  the  interstate  freight  cars  had  not 
as  yet  been  coupled  is  legally  insignificant. 

"Again  it  is  said  that  because  deceased  had  left  his  engine  and 
was  going  to  his  boarding-house,  he  v/as  engaged  upon  a  personal 
errand,  and  not  upon  the  carrier's  business.  Assuming  that  the  evi- 
dence fairly  tended  to  indicate  the  boarding-house  as  his  destination, 
it  nevertheless  also  appears  that  deceased  was  shortly  to  depart  upon 
his  run,  having  just  prepared  his  engine  for  the  purpose,  and  that  he 
had  not  gone  beyond  the  limits  of  the  railroad  yard  when  he  was 
struck.  There  is  nothing  to  indicate  that  his  brief  visit  to  the  board- 
ing-house was  at  all  out  of  the  ordinary,  or  was  inconsistent  with  his 
duty  to  his  employer.  It  seems  to  us  clear  that  the  man  was  still  'on 
duty'  and  employed  in  commerce,  notwithstanding  his  temporary  ab- 
sence from  the  locomotive  engine.  We  conclude  that  with  the  facts 
necessary  to  bring  the  case  within  the  Federal  Act,  there  was  evi- 
dence that  at  least  was  sufliicient  to  go  to  the  jury." 

North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248; 
Rev.  156  N.  C.  496. 


.'iO 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

"The  deceased  was  employed  by  defendant  as  a  yard  clerk,  and 
his  principal  duties  were  those  of  examining  incoming  and  outgoing 
trains  and  making  a  record  of  the  numbers  and  initials  of  the  cars,  of 
inspecting  and  making  a  record  of  the  seals  on  the  car  doors,  of  check- 
ing the  cars  with  the  conductors'  lists  and  of  putting  cards  or  labels 
on  the  cars  to  guide  switching  crews  in  breaking  up  incoming  and 
making  up  outgoing  trains.  His  duties  related  both  to  intra-state  and 
interstate  traffic,  and  at  the  time  of  his  injury  he  was  on  his  way 
through  the  yard  to  one  of  the  tracks  therein  to  meet  an  incoming 
freight  train  from  Oklahoma,  composed  of  several  cars,  ten  of  which 
were  loaded  with  freight.  The  purpose  with  which  he  was  going  to 
the  train  was  that  of  taking  the  numbers  of  the  cars  and  otherwise 
performing  his  duties  in  respect  to  them.  While  so  engaged  he  was 
struck  and  fatally  injured  by  a  switch  engine,  which  it  is  claimed  was 
being  negligently  operated  by  other  employes  in  the  yard. 

"The  train  from  Oklahoma  was  not  only  an  interstate 
train  but  was  engaged  in  the  movement  of  interstate  freight, 
and  the  duty  which  the  deceased  was  performing  was  connected  with 
that  movement,  not  indirectly  or  remotely,  but  directly  and  imme- 
diately. The  interstate  transportation  was  not  ended  merely  because 
that  yard  was  a  terminal  for  that  train,  nor  even  if  the  cars  were  not 
going  to  points  beyond.  Whether  they  were  going  further  or  were  to 
stop  at  that  station,  it  still  was  necessary  that  the  train  be  broken  up 
and  the  cars  taken  to  the  appropriate  tracks  for  making  up  outgoing 
trains  or  for  unloading  or  delivering  freight,  and  this  was  as  much  a 
part  of  interstate  transportation  as  was  the  movement  across  the  state- 
line." 

St.  Louis  &c  Ry.  v  Seale,  229  U.  S.  156. 


31 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

"Tracks  and  bridges  are  as  indispensable  to  interstate  commerce 
by  railroad  as  are  engines  and  cars,  and  sound  economic  reasons  unite 
with  settled  rules  of  law  in  demanding  that  all  of  these  instrumentali- 
ties be  kept  in  repair.  The  security,  expedition  and  efficiency  of  the 
commerce  depends  in  a  large  measure  upon  this  being  done.  Indeed, 
the  statute  now  before  us  proceeds  upon  the  theory  that  the  carrier  is 
charged  with  the  duty  of  exercising  appropriate  care  to  prevent  or 
correct  any  defect  or  insufficiency  *  *  *  jj^  j^-g  cars,  engines, 
appliances,  machinery,  tracks,  roadbed,  woi'ks,  boats,  wharves,  or 
other  equipment  used  in  interstate  commerce.  But  independently  of 
the  statute  we  are  of  the  opinion  that  the  work  of  keeping  such  instru- 
mentalities in  a  proper  state  of  repair,  while  thus  used,  is  so  closely 
related  to  such  commerce  as  to  be  in  practice  and  in  legal  contempla- 
tion a  part  of  it.  The  contention  to  the  contrary  proceeds  upon  the 
assumption  that  interstate  commerce  by  railroad  can  be  separated 
into  its  several  elements  and  the  nature  of  each  determined  regard- 
less of  its  relation  to  others  or  to  the  business  as  a  whole.  But  this  is 
an  erroneous  assumption.  The  true  test  always  is:  'Is  the  work  in 
question  a  part  of  the  interstate  commerce  in  which  the  carrier  is 
engaged?'  See  McCall  v  California,  136  U.  S.  104;  Second  Employers' 
Liability  Cases;  Zikos  v  Oregon  R.  N.  Co.,  179  Fed.  893;  Central  Ry. 
v  Colazurdo,  192  Fed.  901;  Darr  v  Baltimore  &  O.  Ry.,  197  Fed.  665; 
Northern  Pac.  Ry.  v  Maerkl,  198  Fed.  1.  Of  course,  we  are  not  here 
concerned  with  the  construction  of  tracks,  bridges,  engines  or  cars, 
which  have  not  as  yet  become  instrumentalities  in  such  commerce,  but 
only  with  the  work  of  maintaining  them  in  proper  condition  after  they 
have  become  such  instrumentalities  and  during  their  use  as  such. 
True,  a  track  or  bridge  may  be  used  in  both  interstate  and  intra-state 
commerce,  but  when  it  is  so  used,  it  is  none  the  less  an  instrumentality 
of  the  former;  nor  does  its  double  use  prevent  the  employment  of 
those  who  are  engaged  in  its  repair  or  in  keeping  it  in  suitable  condi- 
tion for  use  from  being  an  employment  in  interstate  commerce.  The 
point  is  made  that  the  plaintiff  was  not  at  the  time  of  his  injury  en- 
gaged in  removing  the  old  girder  and  inserting  the  new  one  but  was 
merely  carrying  to  the  place  where  that  work  was  to  be  done,  some  of 
the  materials  to  be  used  therein.  We  think  there  is  no  merit  in  this. 
It  was  necessary  to  the  repair  of  the  bridge  that  the  materials  be  at 
hand,  and  the  act  of  taking  them  there  was  a  part  of  the  work.  In 
other  words,  it  was  a  minor  task  which  was  essentially  a  part  of  the 
larger  one,  as  is  the  case  when  an  engineer  takes  his  engine  from  the 
roundhouse  to  the  track  on  which  are  the  cars  he  is  to  haul  in  inter- 
intra-state  commerce." 
"Pedersen  v  Delaware  &c  Ry.,  229  U.  S.  146. 

"Lamphere  v  Oregon  R.  &  N.  Co.,  196  Fed.  338. 

"Horton  v  Oregon  &c  Co.,  130  Pac.  897. 

"Johnson  v  Southern  Pac.  Co.,  19G  U.  S.  1. 
32 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

"In  Pedersen  v  Delaware  &c  Ry.,  229  U.  S.  146;  33  S.  C.  648;  57 
L.  Ed.  1125,  an  employe  of  an  interstate  railway  carrier  was  killed 
while  carrying  a  sack  of  rivets  to  be  used  on  the  morrow  in  repairing 
a  bidge  over  which  regularly  passed  both  kinds  of  commerce,  and 
although  he  was  killed  by  a  train  operating  wholly  within  the  state 
where  the  accident  happened,  yet  it  was  held  by  the  United  States 
Supreme  Court  that  the  case  came  within  the  Federal  Act,  because 
the  bridge  to  be  repaired  was  habitually  used  in  interstate  commerce 
as  well  as  the  other  kind. 

"In  Horton  v  Oregon  &c  Co.,  72  Wash.  503,  130  Pac.  897,  47  L.  R. 
A.  (N.  S.)  8,  the  plaintiff  decedent  was  in  charge  of  a  pumping  sta- 
tion on  the  line  of  defendants'  railroad  at  a  point  where  both  kinds  of 
commerce  passed  over  the  track,  and  it  was  his  duty  to  keep  the  tank 
filled  from  which  locomotives  took  water  while  engaged  in  hauling  all 
kinds  of  cars  destined  to  points  within  and  without  the  state  where  the 
accident  occurred.  He  was  killed  by  one  of  defendants'  trains  while 
returning  from  his  work  to  his  home.  It  was  there  decided  that  he 
was  engaged  in  interstate  commerce. 

"In  Johnson  v  Great  Northern  Ry.,  178  Fed.  643,  102  C.  C.  A. 
89,  the  injured  plaintiff  in  discharge  of  his  duty  was  examining  a  de- 
fective coupling  on  an  empty  car  which  stood  on  the  switch  track 
waiting  to  be  returned  to  another  state.  He  was  hurt  by  a  switching 
engine  in  the  yard  having  kicked  a  car  against  him.  It  was  held  that 
he  was  employed  in  interstate  commerce. 

"In  Northern  Pac.  Ry.  v  Maerkl.  198  Fed.  1,  117  C.  C.  A.  237,  a 
carpenter  was  injured  while  repairing  a  car  used  indiscriminately  in 
both  kinds  of  commerce,  and  it  was  held  that  the  Act  applied.  In  Joyies 
V  Chesapeake  &c  Ry.,  149  Ky.  566,  149  S.  W.  951,  the  plaintiff  was 
engaged  in  repairing  a  sidetrack  of  a  railroad  engaged  in  interstate 
commerce,  and  by  the  negligence  of  his  fellow  servants  his  thumb  was 
mashed  between  the  ends  of  rails  which  were  being  laid.  It  was  held 
that  the  case  came  within  the  national  legislation  on  the  subject.  The 
doctrine  of  the  Mondou  and  Pedersen  cases  is  that  if  the  injury  to 
the  employe  appreciably  affects  the  conduct  of  interstate  commerce  by 
a  railway  carrier,  it  is  within  the  purview  of  the  Federal  Act,  and 
must  be  controlled  by  the  statute,  although  the  transaction  in  dispute 
may  be  closely  connected  with  local  traffic." 

Oherlin  v  Oregon  kc  N.  Co.,  71  Or.  177;  142  Pac. 
Eep.  554. 


33 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

"The  important  inquiry  is  as  to  what  the  employe  was  doing  at 
the  time  the  accident  occurred;  and  it  appears  without  dispute  in  this 
record  that  the  employe  had  finished  the  duties  required  of  him  by 
prior  orders  of  the  master  and  was,  at  the  time  of  the  injury,  proceed- 
ing to  the  master's  office  for  further  orders  and  direction  as  to  his 
service,  so  that  he  was  not  then  and  there  employed  in  moving  or 
handling  cars  engaged  in  interstate  commerce.  That  service  had  been 
fully  completed  and  ended,  and  he  had  not  re-engaged  in  any  similar 
employment,  so  thei'e  is  no  evidence  in  this  record  tending  to  prove 
that  at  the  time  the  accident  actually  happened,  this  plaintiff  was 
then  and  there  engaged  in  interstate  commerce,  and  the  mere  fact 
that  shortly  before  that  time  he  had  been  so  engaged,  or  that  the 
next  service  his  master  would  require  wovild  be  of  interstate  charac- 
ter, cannot  and  does  not  establish  the  fact  that  at  the  time  of  the 
injury  he  was  so  engaged." 

Erie  R.  R.  v  Welsh,  Ohio  1913,  105  N.  E.  Rep. 
189. 


34 


INTERSTATE  COM— EMPLOYEE  MUST  BE  ENGAGED  IN 

The  employe's  relation  must  be  so  close  and  direct  to 
interstate  commerce  that  his  injury  tended  to  stop  or  de- 
lay movement  of  train  engaged  therein. 

Shanks  v  Delaivare  kc  Ry.,  163  App.  Div.  565; 
148  N.  Y.  S.  1034. 
The  particular  service  must  be  part  of  interstate 
commerce. 

Patry  v  Chicago  &c  Ry.,  265  111.  310;  106  N.  E. 

843;  Rev.  185  111.  App.  361. 
Baltimore  &c  Ry.  v  Darr,  124  C.  C.  A.  565 ;  204 

Fed.  751 ;  Aff.  197  Fed.  665. 
Missouri  &c  Ry.  v  Fesmin,  150  S.  W.  201. 
Act  applies  to  every  person  whom  Congress  could  in- 
clude. 

Horton  v  Oregon  &c  R.  N.  Co.,  72  Wash.  503 ;  130 
Pac.  897. 


35 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

Employe 's  being  in  performance  of  his  duty  must  be 
shown. 

Hohhs  V  Great  Northern  Ry.,  80  Wash.  678;  142 

Pac.  20. 
Devine  v  Chicago  &c  Ry.,  185  111.  App.  488;  Aff. 

266111.  248;  107  N.  E.  595. 
Bower  v  Chicago  &c  Ry.,  96  Neb.  419;  148  N.  W. 
145. 
Hostler's  helper  held  not  acting  outside  of  duties. 
Texas  &c  Ry.  v  Harvey,  228  U.  S.  319 ;  33  S.  C. 
518;  Aff.  184  Fed.  990;  160  C.  C.  A.  668. 


8G 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

CONDUCTOR  of  freight  train,  who  was  injured  while 
assisting  in  transferring,  from  one  yard  to  another,  cars 
then  used  in  interstate  commerce,  is  included  in  provis- 
ions Qf  Act. 

Wagner  v  Chicago  &  A.  Ry.,  180  111.  App.  196. 
See:  Peery  v  Illinois  Central  R.  R.,  128  Minn. 
119;150N.  W.  382. 
Although  his  run  within  state,  included. 

Pary  v  Illinois  Central  R.  R.,  143  N.  W.  724. 
Freight  conductor,  returning  with  only  caboose,  and 
hauling  dead  engine  to  a  terminal,  excluded. 

McAuliffe  V  Neiv  York  Central  &c  R.  R.,  150  N. 
Y.  S.  512;  164  App.  Div.  846. 
Conductor  getting  train  ready  for  inter-  and  intra- 
state freight,  included. 

Neil  V  Idaho  &c  R.  R.,  22  Idaho  74;  125  Pac.  331. 
Extra  conductor,  riding  to  serve  on  work  train,  ex- 
cluded. 

Feaster  v  Phila.  &  R.  Ry.,  197  Fed.  580. 


37 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

ENGINEER  switching  cars  from  train  which  he  had 
just  brought  in  from  another  state,  included. 

Kansas  City  &c  Ry.  v  Pope,  152  S.  W.  185 ;  Reh. 

den.  153  S.  W.  163. 
See :  Hearst  v  St.  Louis  &c  Ry.,  173  S.  W.  86. 
BRAKEMAN  carrying  ice  for  interstate  train,  in- 
cluded. 

Illinois  Central  R.  R.  v  Nelson,  203  Fed.  956. 
Brakeman  on  interstate  passenger  train  included. 
Cincinnati  &c  Ry.  v  Ooode,  155  Ky.  153 ;  159  S. 
W.  695 ;  Mod.  on  reh.  153  Ky.  247 ;  154  S.  W. 
941. 
Oberlin  v  Oregon  &c  N.  Co.,  71  Or.  177;  142 
Pac.  554. 
Brakeman,  injured  by  negligence  of  felloAv-servant, 
working  on  intra-state  car,  included. 

Carr  v  Neiv  York  Central  &c  R.  R.,  136  N.  Y.  S. 
501 ;  79  Mis.  Rep.  346. 
Brakeman,  looking  for  tin  cup  for  interstate  train,  in-, 
eluded. 

Baltimore  &c  R.  R.  v  Whitacre,  124  Md.  411;  92 
Atl.  1060. 
Brakeman  on  interstate  train,  assisting  in  switching 
and  uncoupling  cars  to  allow  train  to  proceed,  included. 

Neiv  York  Central  Ry.  v  Carr,  238  U.  S.  260; 
Aff.  158  App.  Div.  891. 
Brakeman   on   pick-up  train,   containing   interstate 
freight,  setting  brake  on  intra-state  car,  included. 
New  York  &c  R.  R.  v  Carr,  35  S.  C.  780. 
Brakeman,  running  an  extra,  lone  engine,  between  in- 
tra-state points,  excluded. 

Wrif/lit  V  Chicago  &c  Ry.,  143  N.  AV.  220. 


38 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

FIREMAN,  firing  engine  to  be  attached  to  interstate 
train,  included. 

Lonsellita  v  Neiv  York  Central  &c  R.  R.,  94  Atl. 
804. 
Locomotive  fireman  on  way  to  station  to  be  trans- 
ported to  a  distant  point  to  fire  interstate  engine,  ex- 
cluded. 

Lamphere  v  Oregon  R.  &  N.  Co.,  193  Fed.  248; 
reversed  in  196  Fed.  336. 
SWITCHMAN    of   interstate,    together    with   intra- 
state, trains,  included. 

Otos  V  Great  Northern  Ry.,  128  Minn.,  283;  150 
N.  W.  922. 
Switching  coal  cars,  containing  interstate  shipment, 
for  dumping  into  bunkers,  for  use  of  interstate  locomo- 
tives, included. 

Barloiv  v  Lehigli  Valley  R.  R.,  143  N.  Y.  S.  1053 ; 
158  App.  biv.  768. 
Member  of  switching  crew,  moving  oil  from  oil  car 
for  interstate  train,  included. 

Montgomery  v  Southern  Pac.  Co.,  131  Pac.  507. 
Switching  crew  head,  included.    See : 

Vandalia  R.  R.  v  Holland,  108  N.  E.  580. 
Switchman — switching  train  of  cars  to  be  classified, 
inspected  and  assembled,  excluded  from  safety  appliance 
act. 

United  States  v  Neiv  York  Central,  205  Fed  428. 
Switching  in  yards  freight  in  transit,  included. 

Rich  V  St.  Louis  &c  Ry.,  166  Mo.  App.  379;  148 
S.  W.  1011. 
Switchman,  handling  inter-  and  intra-state  cars  just 
prior  to  death,  included. 

Pittsburg  &c  Ry.  v  Glinn,  219  Fed.  148. 


39 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

YARD  CLERK,  checking  cars,  not  connected  with  in- 
terstate train,  excluded. 

Pecos  &  Ry.  Co.  v  Rosenhloom,  177  S.  W.  952. 
Yard  clerk,  meeting  interstate  train,  included. 

St.  Louis  &c  Ry.  v  Seale,  229  U.  S.  156;  33  S.  C. 
651 ;  59  L.  Ed.  1139 ;  rev.  148  S.  W.  1099. 
SECTION  FOREMAN,  of  switch  yard,  where  inter- 
state train  made  up,  included. 

Willever  v  Delaivare  &c  R.  R.,  94  Atl.  595. 
Section  foreman,  helping  his  crew  to  lift  hand  car 
from  track,  for  mixed  interstate  and  intra-state  train,  in- 
cluded. 

Texas  &c  Ry.  v  White,  177  S.  W.  1185. 
Section  foreman  injured  through  negligent  opera- 
tion of  interstate  freight  train  included. 

Louisville  &c  Ry.  v  Kemp,  140  Ga.  657 ;  79  S.  E. 
558. 
INSPECTOR,  helping  to  clear  a  yard  wreck,  included. 
Southern  Ry.  v  Puchett,  85  S.  E.  809. 


40 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

ROUNDHOUSE  EMPLOYE,  held  included. 

Cross  V  Chicago  &c  By.,  177  S.  W.  1127. 
SIGNALMAN:    An    electric    signalman,    controlling 
both  inter  and  intra-state  trains,  included. 

Cincinnati  &c  Ry.  v  Bonliam,  130  Tenn.  435 ;  171 
S.  W.  79. 
TRUCK  MAN,  wheeling  interstate  freight  from  ware- 
house into  car,  included. 

Illinois  Central  R.  R.  v  Porter,  207  Fed.  311. 
FLAGMAN  at  crossing,  held  excluded. 

Louisville  &c  Ry.  v  Barrett,  85  S.  E.  923. 
HOSTLER,  in  yards,  dispatching  engine,  excluded. 
Gray  v  Chicago  &  N.  W.  R.  R.,  153  Wis.  637 ;  142 
N.  W.  505. 
Hostler's  helper,  included. 

Texas  &c  Ry.  v  Harvey,  228  U.  S.  319;  33  S.  C. 
518. 
PUMPER,  at  station  pump  for  interstate  locomotives, 
included. 

Horton  v  Oregon  &c  Ry.,  72  Wash.  503,  130  P. 
897. 


41 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

EMPTY  CARS: 

"The  hauling  of  empty  freight  cars  from  one  state  to  another,  is, 
in  our  opinion,  interstate  commerce  within  the  meaning  of  the  Act." 
North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248. 
"In  the  very  nature  of  the  business,  these  empty  cars  must  be 
returned,  in  order  to  carry  the  remaining  freight  and  passengers  not 
able  or  ready  to  go  at  an  earlier  date,  and  to  accommodate  the  ordi- 
nary traffic  in  ordinary  seasons." 

TJwmpson  v  Wabash  R.  R.,  Mo.  1914;  171  S.  W. 

Kep.  364. 
St.  Louis  &c  Ry.  v  Anderson,  173  S.  W.  834. 
Moved  within  state,  from  another  state,  excluded. 
Penna  R.  R.  Co.  v  Knox,  218  Fed.  748;  134  C.  C. 
A.  426. 
Employee,  assisting  in  running  train,  when  any  cars 
go  outside  of  state,  though  employe  is  not  intending  to 
pass  state  line,  included. 

Mattocks  V  Chicago  &  A.  R.  R.,  187  111.  App.  529. 
Employe  on  train  without  interstate  passengers,  ex- 
cluded. 

Erie  R.  R.  v  Jacohus,  221  Fed.  335. 


42 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

Work  in  part  inter-  and  in  part  intra-state  traflfic. 

Employe,  injured  while  on  local  work,  excluded. 
Southern  Ry.  v  Murphy,  70  S.  E.  97. 
If  injured  at  moment  when  service  is  part  of  inter- 
state commerce,  included. 

Corbett  v  Boston  &c  R.  R.,  219  Mass.  351;  107 
N.  E.  60. 
Handling  both  inter-  and  intra-state  freight  cars  just 
prior  to  injury,  included. 

Pittsburg  &c  Ry.  v  Glinn,  135  C.  C.  A.  46;  219 
Fed.  148. 
Test  is  whether  the  particular  work  at  the  time  of 
injury  was  so  closely  connected  with  interstate  traffic  as 
to  be  part  thereof. 

Eng  V  Southern  Pac.  R.  R.,  210  Fed.  92. 
Fireman,  working  on  intra-state  train,  ordinarily  em- 
ployed in  interstate  traffic,  included. 

Behrens  v  Illinois  Central  R.  R.,  192  Fed.  581. 


43 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

GOING  TO  WORK.    Reporting  for  interstate  duty  at 
station  on  express  order,  included. 

Lamphere  v  Oregon  R.  &  N.  Co.,  196  Fed.  336; 
rev.  193  Fed.  248. 
Going  to  work  on  switch  engine,  used  at  outset  of 
shift  in  interstate  commerce,  included. 

Knowles  v  New  York  &c  R.  R.,  150  N.  Y.  S.  99; 
164  App.  Div.  711. 
GOING  HOME.  Engineer,  going  home  on  push  car,  in- 
cluded. 

Louisville  &c  R.  R.  v  Walker,  162  Ky.  299;  172 
S.  W.  517. 
Section  hand,  returning  on  hand  car  to  camp,  and 
also  to  a  point  where  hand  car  was  to  be  removed  from 
track,  included. 

San  Pedro  kc  Ry.  v  Davids,  210  Fed.  870. 
Employe  riding  on  a  train  to  his  home,  and  killed  in 
collision,  held  excluded. 

Bennett  v  Leliigh  Valley  R.  R.,  197  Fed.  578. 
Pumper,  going  home  on  hand  car,  included. 

Horton  v  Oregon  &c  Ry.,  72  Wash.  503;  130  Pac. 
897. 


44 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

TEMPORARY  ABSENCE:  When  Act  excludes. 

Taker  v  Dulleth,  150  N.  AV.  489. 
Laborer  on  work-train,  boarding  freight  train  to  get 
mail,  excluded. 

Meijers  v  Norfolk  By.,  78  S.  E.  280. 
Employe,  going  to  roundhouse  for  his  own  purpose, 
excluded. 

Padgett  v  Seaboard  Air  Line,  99  S.  C.  364;  83 
S.  E.  633;  Aff.  236  U.  S.  668;  35  S.  C.  481. 
Going  from  saloon  to  station  for  orders  after  brief 
absence,  included. 

Graber  v  Duluth  &c  R.  K,  159  Wis.,  414;  150 
N.  W.  489. 
LOADING  AND  UNLOADING.  Unloading  steel  rails 
after  reaching  their  destination,  excluded. 

Pierson  v  Neiv  York  &c  R.  R.,  85  Atl.  233. 


45 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

TRACK  REPAIRS;  rela^dng  track  for  interstate  and 
intra-state  trains,  excluded. 

Charleston  &c  Ry.  v  Anchors,  73  S.  E.  551. 
Laborer   working   on   track   over   which   interstate 
trains  have  not  yet  run,  excluded. 

Chicago  &>c  R.  R.  v  Steele,  108  N.  E.  4. 
Section  hand,  engaged  in  ballasting  main  track,  car- 
rying interstate  passengers  and  freight,  included. 
San  Pedro  &c  Ry.  v  Davids,  210  Fed.  870. 
Repairing  sidetrack  for  interstate  traffic,  included. 

Clark  V  Chicago  Gt.  W.  R.  R.,  152  N.  W.  635. 
Shoveling  dirt  from  between  interstate  tracks,  in- 
cluded. 

Lomhardo  v  Boston  &c  R.  R.,  223  Fed.  427. 
Laborer   on   trestle,   used  in   interstate   commerce, 
walking  on  tracks  to  boarding-house,  included. 

Louisville  &c  Ry.  v  Walkers'  Admr.,  162  Ky. 
209;  172  S.W.  517. 
Waiting  for  train  to  pass  over  track  used  for  inter- 
state traffic,  on  which  laborer  was  repairing  rails,  in- 
cluded. 

Glunt  V  Penna.  R.  R.,  95  Atl.  109. 


46 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

MOVING  MATERIAL:  Carrying  material  to  repair 
bridge,  used  in  both  interstate  and  intra-state  traffic,  in- 
cluded. 

Pederson  v  Delaware  &c  By.,  229  U.  S.  146;  33 
S.  C.  648;  57  L.  Ed.  1125;  rev.  117  C.  C.  A. 
33;  197  Fed.  537. 
Hauling   coal,   which   might   be   used   on  interstate 
trains,  excluded. 

Barker  v  Kansas  City  &c  By.,  94  Kans.  176 ;  146 
Pac.  358. 
Moving  coal  or  water  from  one  state  to  another  for 
interstate  traffic  use,  included. 

Barker  v  Kansas  City  &,c  By.,  88  Kans.  767 ;  129 
Pac.  1151. 
Unloading  coal  from  cars,  held  included. 

Kamhoris  v  Oregon  &  W.  B.  &  N.  Co.,  146  Pac. 
1097. 
Switching  coal  cars  from  another  state  to  trestle  for 
unloading,  included. 

Barloiv  v  Lehigh  Valley  B.  B.,  214  N.  Y.  116; 
107  N.  E.  814;  Aff.  143  N.  Y.  S.  1053;  158 
App.  Div.  768. 


47 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

MINING  COAL,  excluded. 

Delaware  &c  Ry.  v  Yurkonis,  220  Fed.  429 ;  Aff. 
213  Fed.  537;  App.  Dis.  238  U.  S.  439;  35 
S.  C.  902. 
Boijle  V  Penna  R.  R.,  221  Fed.  453. 
"The  mere  fact  that  the  coal  might  be  or  was  intended  to  be  used 
in  the  conduct  of  interstate  commerce  after  it  was  mined  and  trans- 
ported did  not  make  the  injury  one  received  by  the  plaintiff  while  he 
was  engaged  in  interstate  commerce." 

Delaware,  L.  &  W.  R.  R.  v  Yurkonis,  238  U.  S. 
439;  Dism.  AVrit  220  Fed.  429. 
BRIDGE  WORK;  employe  working  on  a  bridge  or 
cut-off  not  yet  provided  with  rails,  excluded. 

Bravis  v  Chicago  &c  Ry.,  217  Fed.  234;  133  C.  C. 
A.  228. 
Workman  on  temporary  bridge,  over  which  railroad 
intended  running  interstate  trains,  included. 

Columbia  &c  Ry.  v  Sauter,  223  Fed.  604. 
Repairing  bridge  on  interstate  line,  included. 

Thomson  v  Columbia  &c  Ry.,  205  Fed.  203. 
STEAM  SHOVEL;  engineer  operating  on  interstate 
road,  included. 

Fralich  v  Chicago  &c  Ry.,  217  Fed.  675. 
Weighing;  a  member  of  a  train  crew,  weighing  cars 
after  delivery  to  consignee  of  inter-state  freight,  to  deter- 
mine net  weight,  included. 

Wheeling  Terminal  R.  R.  v  Russell,  209  Fed. 
795;126C.  C.  A.  519. 


48 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

TEARING  DOWN  STRUCTURE,  that  a  new  one 
could  be  constructed  for  interstate  business,  excluded. 

Thomas  v  Boston  &  Maine  R.  R.,  218  Fed.  143 ; 
judgment  reversed  219  Fed.  180;  134  C.  C. 
A.  554. 
BUILDING  STRUCTURE,  or  construction  of  instru- 
mentality intended  to  be  used  in  interstate  commerce,  ex- 
cluded. 

Brans  v  Chicago  &c  R.  R.,  217  F.  234. 
Building  coal  chute,  excluded. 

Voris  V  Chicago  &c  Ry.,  172  Mo.  App.  125,  157 
S.  W.  835. 
Framing  a  new  office  in  freight  shed,  used  for  both 
inter-  and  intra-state  traffic,  included. 

Eng  V  Southern  Pacific  Ry.,  210  F.  92. 
Constructing  tunnel,  excluded. 

Jackson  v  Chicago  &c  Ry.,  210  F.  495. 


49 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

STREET  RAILWAYS;  servants  in  charge  of  street 
car  operating  within  state,  excluded. 

Riser  v  Metropolitan  St.  Ry.,  175  S.  W.  98. 
Where  street  railway  traffic  is  interstate,  employes 
included. 

South  Covington  &c  Ry.  v  City  of  Covington,  35 
Sup.  Ct.  158;  rev.  146  Ky.  592;  143  S.  W. 
78. 
BOATS;  tug  boat  of  railroad,  included. 

Erie  R.  R.  v  Jacobus,  221  Fed.  335. 
Hauling  logs  to  seaport  within  state,  excluded. 

Bay  V  Merrill  &  Ring  L.  Co.,  220  Fed.  295;  Aff. 
211  Fed.  717. 
IN  TRANSIT;  passing  from  one  point  to  another 
within  state,  through  another  state,  included. 

Louisville  &c  Ry.  v  Allen,  152  Ky.  145 ;  153  S. 
W.  198;  reh.  over.  152  Ky.  837;  154  S.  W. 
371. 


50 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

INSTRUMENTALITIES;  all  employees  who  partici- 
pate in  the  maintenance  or  operation  of  instrumentalities 
for  general  use  of  an  interstate  railroad  are  included. 

Montgomery  v  Southern  Pac.  Co.,  131  Pac.  507. 
Eng  V  Southern  Pac.  Ry.,  210  Fed.  92. 
Disconnecting    steampipe    on    interstate    train,    in- 
cluded. 

Kansas  City  S.  Ry.  v  Miller,  175  S.  W.  1164. 
Installing  block  signal  system  on  track  over  which 
interstate  trains  passed,  included. 

Saunders  v  Southern  Ry.,  167  N.  C.  375 ;  83  S.  E. 
573. 
Section  hand,  repairing  switch  so  as  not  to  delay  in- 
terstate traffic,  included. 

Jones  V  Chesapeake  &c  Ry.,  149  Ky.  566 ;  149  S. 
W.  95. 
Employee,  working  on  switch  mechanism  and  struck 
by  intra-state  train,  excluded. 

Granger  v  Penna.  R.  R.,  86  Atl.  264. 
Supplying  ice  to  interstate  train,  included. 

Freeman  v  Poivell,  144  S.  W.  1033;  148  S.  W. 
290. 

"All  employes  who  participate  in  the  maintenance  or  operation 
of  the  instrumentalities  for  the  general  use  of  an  interstate  com- 
merce railroad,  thereby  enhancing  the  utility  of  such  commerce,  are 
necessarily  engaged  in  the  work  of  interstate  commerce,  within  the 
meaning  of  the  Act.  The  fact  that  a  portion  of  plaintiff's  work  per- 
tained to  local  traffic  would  not  change  the  character  of  his  labor  in 
the  performance  of  acts  reasonably  proximate  and  essential  to  the 
moving  of  interstate  freight  and  and  in  assistance  thereof." 

Montgomery  v  Southern  Pac.  Co.,  64  Oregon 
597 ;  131  Pac.  507. 
Moving  oil  from  oil  car  to  provide  fuel  for  engines, 
included.    Ih. 


51 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

ENGINE  REPAIR;  boilermaker's  helper,  injured 
while  assisting  in  shops  in  repairing  an  engine,  regularly 
in  use  in  interstate  commerce,  included. 

Laiv  V  Illinois  Central  R.  R.,  208  Fed.  869 ;  126 
C.  C.  A.  27. 
Machinist  in  yards,  sent  to  repair  switch  engine  hand- 
ling interstate  freight,  included. 

Staley  v  Illinois  C.  R.  R.,  109  N.  E.  342. 
Repairing  switch  engine  for  mixed  traffic,  temporar- 
ily withdrawn,  included. 

Southern  Pac.  Ry.  v  Pillshury,  151  Pac.  277. 
Mechanic  in  repair  shop,  excluded. 

Shanks  v  Delaware  &c  Ry.,  214  N.  Y.  416;  108  N. 
E.  644. 
Car  diverted  for  necessary  repair  held  included. 

St.  Louis  &ic  Ry.  v  Conarty,  155  S.  AV.  93. 
Repairing  car  of  another  railroad  company,  exclud- 
ed. 

Heimhach  v  Lehigh  Valley  R.  R.,  197  Fed.  579. 
Repairing  boiler  of  wrecking  train  engine  lying  in 
roundliouse,  excluded,  it  being  an  appliance  which  may  or 
may  not  be  used  in  interstate  commerce. 

Ruck  V  Chicago  &c  Ry.,  153  Wis.  158;  140  N.  W. 
1074. 
CLEANING  STENCILS,  excluded. 

Illinois  C.  R.  R.  v  Rogers,  221  Fed..  52;  C.  C.  A. 


52 


INTERSTATE  COM.— EMPLOYEE  MUST  BE  ENGAGED  IN 

QUESTION  FOR  JURY:     Whether  employe  was  at 
the  time  engaged  in  interstate  passenger  or  freight  traf- 
fic, is  a  question  of  fact  to  be  determined  by  the  jury. 
Southern  Pacific  Co.  v  Vaugh,  165  S.  W.  885. 
North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248. 
If  right  to  submit  question  to  jury  be  denied,  Sup- 
reme Court  will  analyze  evidence. 

North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248. 
Southern  Pac.  Co.  v  Schmjler,  227  U.  S.  601. 
Instruction  that  engineer  was  engaged  in  interstate 
commerce  held  correct. 

Louisville  &c  R.  v  Holloway's  Admr.,  163  Ky. 
125 ;  173  S.  W.  343. 
General  verdict  will  not  be  sustained  when  contrary 
to  special  finding  that  plaintiff  was  not  engaged  in  inter- 
state commerce. 

Barber  v  Kansas  City  &c  Ry.,  94  Kan.  176 ;  146 
Pac.  358. 


53 


INTERSTATE   COMMERCE— AGENT,  OR  INSTRUMENT 
CAUSING  INJURY  NEED  NOT  BE  ENGAGED  IN 

Interstate  Commerce — Agent  or  instrument  causing  in- 
jury need  not  be  engaged  in — 

Act  does  not  require  that  a  fellow-servant,  whose 
negligence  causes  injury,  shall  be  engaged  in  interstate 
commerce. 

Pedersen  v  Delaware  &c  R.  R.,  229  U.  S.  146. 
Second  Employers'  Liability  Cases,  223  U.  S.  1. 
Louisville  &c  Ry.  v  Walkers'  Admr.,  162  Ky. 

209;172S.  W.  517. 
Northern  Pac.  Ry.  v  Maerhl,  198  Fed.  1 ;  117  C. 
C.  A.  237. 

"It  is  not  essential,  where  the  causal  negligence  is  that  of  a  co- 
employe,  that  he  also  be  employed  in  interstate  commerce,  for,  if  the 
other  conditions  be  present,  the  statute  gives  a  right  of  recovery  for 
injury  or  death  resulting  from  the  negligence  'of  any  of  the  *  * 
employes  of  such  carrier,'  and  this  includes  an  employe  engaged  in 
interstate  commerce." 

Pedersen  v  Delaivare  &c  R.  R.,  229  U.  S.  146.     . 
Second  Employers'  Liahility  Cases,  223  U.  S.  1, 
51. 
Act  is  applicable  although  the  train,  engine,  car  or 
instrumjentality,  causing  the  injury,  was  not  used  in  in- 
terstate commerce.    Engineer  injured  by  intra-state  loco- 
motive may  recover. 

Pittsburgh  &c  Ry.  v  Farmers  &c  Trust  Co.,  108 
N.  E.  108. 
Recovery  may  be  had  although  the  injury  resulted 
from  a  defective  brake  step  on  an  intra-state  car. 

Crandall  v  Chicago  &  G.  W.  Ry.,  127  Minn.  498; 
150  N.  W.  165. 
Dead  engine  hauled  by  interstate  train — see: 

Atlantic  Coast  Line  v  Jones,  9  Ala.  App.  499; 
63  So.  693. 


54 


EMPLOYER  AND  EMPLOYEE— RELATION  MUST  EXIST 

Employer  and  Employee — Relation  must  exist. 

Act  gives  no  right  of  recovery  to  a  Pullman  car  por- 
ter, not  being  an  "employe"  of  the  railroad. 

"We  are  of  the  opinion  that  Congress  used  the  words  'employe' 
and  'employed'  in  the  statute  in  their  natural  sense,  and  intended  to 
describe  the  conventional  relation  of  employer  and  employe.  It  was 
well  known  that  there  were  on  inter-state  trains  persons  engaged  in 
various  services  for  other  masters.  Congress,  familiar  with  this  sit- 
uation, did  not  use  any  appropriate  expression  which  could  be  under- 
taken to  indicate  a  purpose  to  include  such  persons  among  those  to 
whom  the  railroad  company  was  to  be  liable  under  the  Act." 

Robinson  v  Baltimore  &  OJiio  Railroad  Co.,  237 

U.  S.  84;  Aff.  40  App.  D.  C.  169,  (1915). 
Cincinnati  &c  Ry.  v  Swamis  Admr.,  160  Ky.  458 ; 
169  S.  W.  889. 


55 


EMPLOYER  AND  EMPLOYEE— RELATION  MUST  EXIST 

Act  renders  Lessor  Railroad  of  its  entire  intra-state 
line  liable  for  interstate  lessee's  negligence,  when  lessor 
is  responsible  by  local  law. 

Northern  Pac.  R.R.Y  Zachary,  232  V.  S.   248; 
34  S.  C.  305 ;  Kev.  156  N.  C.  496. 
Lessor  railroad  is  not  liable  to  employe  of  lessee. 
Wagner  v  Chicago  &c  R.  R.,  265  111.  245;  109  N. 

E.  809;  Aff.  180  111.  App.  196. 
Campbell  v  Canadian  Northern  Ry.,  124  Minn. 
245;144N.  W.  772. 
Leased  and  joint  railroads  must  use  ordinary  care  to 
maintain  tracks  in  safe  condition  for  employes  of  each 
other. 

Chicago  &c  R.  R.  v  Denius,  103  N.  E.  652. 
Railroad  is  liable  for  defects  in  track  operated  under 
traflSc  arrangements. 

Campbell  v  Canadian  Northern  Ry.,  124  Minn. 
245 ;  144  N.  W.  772. 
EXPRESS  AGENT  cannot  hold  railroad. 

Atlantic  Coast  Line  v  Whitney,  63  Fla.  124;  56 
So.  937. 
Relation  of  master  and  servant  exists  when  employe, 
engaged  in  relaying  rails,  is  asleep  at  night  in  shanty  car 
on  side  track. 

Sandors  v  Charleston  &c  R.  R.,  97  S.  C.  50;  81  S. 
C.  283. 
Relation  does  not  exist  when  employe  is  going  home. 
Dodge  v  Chicago  &c  R.  R.,  146  N.  W.  14. 


66 


NEGLIGENCE— EMPLOYER  MUST  BE  GUILTY  OF 

Negligence — Employer  must  be  guilty  of — 

"Plainly,  it  was  the  intention  of  Congress  to  base  the  action  upon 
negligence  only,  and  to  exclude  responsibility  of  the  carrier  to  its 
employes  for  defects  and  insufficiencies  not  attributable  to  negligence. 
The  common  law  rule  is  that  an  employer  is  not  a  guarantor  of  the 
safety  of  the  place  of  work  or  of  the  machinery  and  appliances  of 
the  work;  the  extent  of  its  duty  to  its  employes  is  to  see  that  ordi- 
nary care  and  prudence  are  exercised,  to  the  end  that  the  place  in 
which  the  work  is  to  be  performed  and  the  tools  and  appliances  of  the 
work  may  be  safe  for  the  workman." 

Seaboard  Air  Line  v  Horton,  233  U.  S.  492. 
Plaintiff  must  allege  and  prove  negligence  of  rail- 
road's agents  or  servants  or  defects  of  appliances. 

Baltimore  &c  R.  R.  v  Whitacre,  124  Md.  411 ;  92 
Atl.  1060. 
Negligence  of  railroad  in  failing  to  discharge  some 
duty  owed  the  employe  under  the  statutes  or  the  common 
law  of  master  and  servant  must  be  shown. 

Cincinnati  &c  Ry.  v  Sivarin's  Admr.,  160  Ky. 
458;  169  S.  W.  886. 
As  to  railroad's  negligence,  the  laws  of  the  state 
may  be  looked  to.    lb. 

The  common  law  of  the  state  where  acccident  oc- 
curred determines  whether  act  complained  of  amounts  to 
negligence. 

Helm  V  Cincinnati  &iC  Ry.,  156  Ky.  240;  160  S. 
W.  945. 


57 


NEGLIGENCE— EMPLOYER  MUST  BE  GUILTY  OF 

QUESTION  FOR  JURY:  Whether  carrier  was  negli- 
gent in  permitting  low  places  in  track,  causing  engine  to 
lurch,  is  question  for  jury. 

Louisville  &c  Ry.  v  Lankford,  209  Fed.  321 ;  126 
C.  C.  A.  277. 
So,  as  to  permitting  runaway  of  car. 

Penna  R.  R.  v  Hickey,  210  Fed.  786. 
So,  as  to  using  road  engine,  instead  of  one  with  front 
foot  board. 

Louisville  &c  R.  R.  v  Lankford,  209  Fed.  321; 
126  C.  C.  A.  247. 
Evidence  of  negligence,  held  sufficient  for  submitting 
to  jury. 

North  Carolina  R.  R.  v  Zachary,,  232  U.  S.  248; 
34  S.  C.  305 ;  Rev.  156  N.  C.  496. 
Failure  to  properly  light  and  guard:  Question  is  for 
jury. 

Copper  River  R.  R.  v  Heney,  211  Fed.  459. 
So,  whether  automatic  coupler  was  in  workable  con- 
dition. 

Nashville  &c  Ry.  v  Heney,  158  Ky.  88;  164  S. 

AV.  310. 
See :  Smith  v  Atlantic  Coast  Line  R.  R.,  210  Fed. 
761. 
Where  railroad's  negligence  depends  on  the  reason- 
ableness of  a  switch  yard  rule  and  the  facts  are  in  dis- 
pute, the  court  should  instruct  the  jury  when  rule  w^ould 
be  reasonable. 

Wright  V  Chicago  &c  Ry.,  146  N.  W.  1024;  Aff. 
143  N.W.  220;  94  Neb.  317. 


68 


NEGLIGENCE— OF  EMPLOYEE  DIMINISHES  DAMAGES 

Negligence — Of  employee — Only  diminishes  damages — 

"This  statute  rejects  the  common  law  rule,  that  contributory 
negligence  is  a  complete  bar  or  defense,  and  adopts  another,  being 
deemed  more  reasonable.  This  provision  means,  and  can  only  mean, 
that  where  the  causal  negligence  is  attributable  partly  to  the  car- 
rier and  partly  to  the  injured  employe,  he  shall  not  recover  full  dam- 
ages, but  only  a  diminished  sum  bearing  the  same  relation  to  the 
full  damages  that  the  negligence  attributable  to  the  carrier  bears  to 
the  negligence  attributable  to  both,  the  purpose  being  to  exclude  from 
the  recovery  a  proportional  part  of  the  damages  corresponding  to  the 
employe's  contribution  to  the  total  negligence." 

Seaboard  Air  Line  Railway  v  Tilghman,  237  U. 
S.  499;  Rev.  167  N.  C.  163. 

"The  statutory  direction  that  the  diminution  shall  be  "in  propor- 
tion to  the  amount  of  negligence  attributable  to  such  employe"  means 
and  can  only  mean,  that  where  the  causal  negligence  is  partly  attrib- 
utable to  him  and  partly  to  the  carrier,  he  shall  not  recover  full  dam- 
ages but  only  a  proportional  amount,  bearing  the  same  relation  to  the 
full  amount  as  the  negligence  attributable  to  the  carrier  bears  to  the 
entire  negligence  attributable  to  both;  the  purpose  being  to  abrogate 
the  common  law  rule  completely  exonerating  the  carrier  from  liabil- 
ity in  such  a  case,  and  to  substitute  a  new  rule  confining  the  exon- 
eration to  a  proportional  amount  of  the  damages  corresponding  to 
the  amount  of  negligence  attributable  to  the  employe." 

Norfolk  &c  By.  v  Earnest,  229  U.  S.  114;  33  S. 

C.  654;  57  L.  Ed.  1096. 
Second  Employers'  Liahility  Cases,  223  U.  S.  1. 
Grand  Trunk  Western  Ry.  v  Lindsay,  233  U.  S. 

42. 
Nashville  &c  Ry.  v  Banks,  156  Ky.  609;  161  S. 

W.  554. 
Pfeiffer  v  Oregon  &c  Co.,  144  Pac.  762. 
Instruction  to  diminish  damages  in  proportion  to  em- 
ploj'e's  negligence  is  not  affirmatively  error. 

St.  Louis  &c  R.  R.  V  Vernon,  161  S.  W.  84. 
Recovery  should  not  be  diminished  in  proportion  to 
the  amount  of  employe's  negligence. 

Nashville  &c  Ry.  v  Henry,  158  Ky.  88 ;  164  S.  W. 
310. 


59 


NEGLIGENCE— OF  EMPLOYEE  DIMINISHES  DAMAGES 

Contributory  negligence  does  not  entirely  bar  recov- 
ery, when  negligence  of  railroad  also  caused  injury. 

Baltimore  &c  R.  R.  v  Whitren,  124  Md.  411;  92 

A.  1060. 
Louisville  &c  R.  R.  v  Heinings  Admr.,  162  Ky. 

14;171S.W.  853. 
Ryan  v  Manhattan  &c  Co.,  145  Pac.  907. 
FisJi  V  Chicago  &c  R.  R.,  172  S.  W.  340. 
Sounders  v  Southern  R.  R.,  167  N.  C.  375 ;  83  S. 

E.  573. 

Chadiuick  v  Oregon,  Wash.  Sic  Co.,  144  Pac.  1165. 
Contributory  negligence  goes  to  diminution  of  dam- 
ages only. 

Hackney  v  Missouri  &c  Ry.,  149  Pac.  421. 
Panhey  v  Atchison  &c  R.  R.,  180  Mo.  App.  185; 
168  S.  AV.  274. 
Jury  must  apportion  amount  of  diminution. 

Hackney  v  Missouri  &c  Ry.,  149  Pac.  421. 
Instruction,  allowing  recovery  without  proof  of  rail- 
road's negligence,  error. 

Louisville  &c  R.  R.  v  Holloway's  Admr.,  163  Ky. 
125 ;  173  S.  W.  343. 
Comparative  and  preponderance  of  negligence,  see : 
Wiles  V  Great  Northern  Ry.,  125  Minn.  348;  147 

N.  ^Y.  427. 
New  York  &c  R.  R.  v  Niebel,  214  F.  952. 
Contributory  negligence  does  not  authorize  charge  to 
find  for  railroad. 

Chicago  &  Great  West.  R.  R.  v  McCormick,  200 

F.  357 ;  118  C.  C.  A.  527. 

Nor  bar  recovery,  no  matter  how  gross  in  degree  or 
proximate  a  cause. 

Pennsylvania  R.  R.  v  Cole,  214  F.  948. 
New  York  kc  R.  R.  v  Niebel,  214  F.  952. 


60 


NEGLIGENCE— OF  EMPLOYEE  DIMINISHES  DAMAGES 

Plaintiff  need  not  show  he  was  free  from  fault,  this 
merely  reducing  damages. 

Charleston  &c  R.  R.  v  Brown,  79  S.  E.  932. 
Contributory  negligence  only  reduces  damages. 
White  V  Central  Vermont  Ry.,  89  Atl.  618. 
McDonald  v  Railway  Transfer  Co.,  141  N.  W. 

177. 
Hardwick  v  Wabash  R.  R.,  181  Mo.  App.  156; 

168  S.  W.  328. 
Lloyd  V  Southern  Ry.,  166  N.  C.  24;  81  S.  E. 
1003. 
Instruction  should  charge  that  it  is  employe's  duty  to 
perform  his  duties  in  a  reasonably  safe  way  and  exercise 
the  care  of  an  ordinarily  prudent  person  under  like  cir- 
cumstances. 

Nashville  &c  Ry.  v  Banks,  156  Ky.  609;  161  S. 
W.  554. 
Only  such  contributory  negligence  as  proximately  con- 
tributed to  the  injury  can  be  considered  in  reduction  of 
damages. 

Illinois  Central  R.  R.  v  Porter,  207  F.  311;  125 
C.  C.  A.  55. 
Contributory  negligence  must  be  proved  by  railroad. 

White  V  Central  Vermont  R.  R.,  89  Atl.  618. 
Extent  of  reduction  of  damages  is  for  jury. 
Louisville  kc  R.  R.  v  Fleming,  69  So.  125. 
Kenney  v  Seaboard  Air  Line  Ry.,  165  N.  C.  99 ; 
80  S.  E.  1078. 
Act  establishes  rule  of  comparative  negligence. 

Grand  Trunk  R.  R.  v  Lindsay,  233  U.  S.  42;  34 

S.  C.  581;  Aff.  201  F.  836;  120  C.  C.  A.  166. 

Instruction  limiting  plaintiff's  knowledge  of  location 

and  construction  of  a  trestle  to  actual  knowledge,  held 

not  objectionable. 

Missouri  &c  Ry.  v  Bunklcy,  153  S.  W.  937. 


61 


NEGLIGENCE— OF  EMPLOYEE  DIMINISHES  DAMAGES 

Rule   as  to   contributory  negligence   applies   to   all 
grades  of  carelessness,  whether  slight  or  gross. 

Mississippi  Central  R.  R.  v  Robinson,  64  So.  838. 
Instruction  that  act  of  switchman  in  riding  on  pilot 
mth  knowledge  of  danger  should  reduce  damages  to  nom- 
inal sum,  error. 

Louisville  &c  R.  R.  v  Lanhford,  209  F.  321 ;  126 
C.  C.  A.  247. 
Contributory  negligence  must  be  pleaded  and  proved 
by  defendant,  if  so  required  by  local  procedure. 

Seaboard  Air  Line  Ry.  v  Moore,  228  U.  S.  433 ; 
33  S.  C.  580 ;  57  L.  Ed.  907 ;  Aff.  193  F.  1022 ; 
113  C.  C.  A.  668. 
Fleming  v  Norfolk  &c  Ry.,  {N.  Car.)  76  S.  E. 
212. 


62 


NEGLIGENCE— OF  EMPLOYEE  DIMINISHES  DAMAGES 

INSTRUCTION  should  construe  act  in  application  to 
facts. 

Pelton  V  Illinois  Central  R.  R.,  150  N.  W.  236; 
reh.  den.  153  N.  W.  334. 
Contributory  negligence :  Instniction  held  correct. 
Walsh  V  Lake  SJiore  &c  Ry.,  151  N.  W.  754. 
Pittsburgh  &c  Ry.  v  Farmers  &c  Co.,  108  N.  E. 
108. 
Erroneous :  Penna  Ry.  v  Sheeley,  221  F.  901. 
Instruction  of  law  as  to  acts  of  engineer  in  emergency 
held  correct. 

Louisville  &c  R.  R.  v  Holloivay's  Admr.,  163  Ky. 
125 ;  173  S.  W.  343. 
Instruction  that  if  the  jury  found  that  plaintiff  did  a 
certain  act,  such  act  was  the  proximate  cause,  and  he 
could  not  recover,  error. 

Grand  Trunk  Ry.  v  Lindsay,  201  F.  36;  120  C. 
C.  A.  166. 
Carrier  is  entitled  to  concrete  instruction  as  to  con- 
tributory negligence. 

Illi7iois  Central  R.  R.  v  Nelson,  203  F.  956;  122 
C.  C.  A.  258. 
The  fact  that  the  employe's  negligence  was  equal  to 
or  greater  than  the  carrier's,  does  not  wholly  bar  recov- 
ery. 

Louisville  &c  R.  R.  v  Wene,  202  F.  887;  121  C. 
C.  A.  245. 
Instruction  as  to  proportionate  care,  held  not  error. 

St.  Louis  &c  Ry.  v  Rodgers,  176  S.  W.  696. 
Evidence  as  to  dangerous  proximity  of  switch  handle 
to  cars,  is  admissible  and  rebuttable  by  proof  of  warn- 
ing. 

McDonald  v  Raihcay  Transfer  Co.,  141  N.  W. 
177. 


63 


NEGLiGENCE— EMPLOYER  LIABLE  FOR  FELLOW-SERVANT'S 

Negligence — Employer  is  liable  for  fellow-servant's. 

Fellow  servant  rule,  abolished  by  act. 

Carter  v  Kansas  City  &c  B.  R.,  155  S.  W.  638. 
Louisville  &c  R.  R.  v  Heinig's  Admr.,  162  Ky. 
14;171S.  W.853. 
Negligence  of  a  flagman  in  failing  to  protect  rear  of  a 
freight  conductor's  train,  whereby  the  latter  is  injured, 
is  that  of  the  railroad. 

Penna  R.  R.  v  Goughnor,  208  F.  961 ;  126  C.  C.  A. 
39. 
A  brakeman  held  entitled  to  rely  on  another  brake- 
man's  statement  that  an  engine  could  pass  cars  on  an- 
other track  without  his  being  caught. 

Skoggs  v  Illinois  Central  R.  R.,  124  Minn.  503 ; 
145  N.  W.  381. 
Failure  of  an  engineer  fellow  servant  to  discover  an 
open  switch,  left  open  by  another  company,  does  not  re- 
lieve carrier. 

Campbell  v  Canadian  N.  Ry.,  1 24  Minn.  245 ;  144 
N.  W.  772. 


64 


ASSUMPTION  OF  RISK— COMMON  LAW  DEFENSE  REMAINS 

Assumption  of  Risk — Common  law  defence  remains. 

"The  defense  of  assumption  of  I'isk  remains  as  at  common  law, 
saving  in  the  cases  mentioned  in  §  4." 

Southern  Ry.  v  Crockett,  234  U.  S.  725. 
Seaboard  Air  Line  v  Horton,  233  U.  S.  492. 

"It  seems  to  us  that  Section  4  in  eliminating  the  defense  of  as- 
sumption of  risk  in  the  cases  indicated  quite  plainly  evidences  the 
legislative  intent  that  in  all  other  cases  such  assumption  shall  have 
its  former  effect  as  a  complete  bar  to  the  action.  And,  taking  Sec- 
tions 3  and  4  together,  there  is  no  doubt  that  Congress  recognized  the 
distinction  between  contributory  negligence  and  assumption  of  risk, 
for,  while  it  is  declared  that  neither  of  these  shall  avail  the  carrier  in 
cases  where  the  violation  of  a  statute  has  contributed  to  the  injury  or 
death  of  the  employe,  there  is,  with  respect  to  cases  not  in  this  cate- 
gory, a  limitation  upon  the  effect  that  is  to  be  given  to  contributory 
negligence,  while  no  corresponding  limitation  is  imposed  upon  the 
defence  of  assumption  of  risk;  perhaps  none  was  feasible." 

Seaboard  Air  Line  v  Horton,  233  U.  S.  492;  34 

S.  C.  635;  58  L.  E.  1062. 
Southern  Ry.  v  Hoiverton,  Ind.  1914,  106  N.  E. 

Rep.  369. 

"Upon  the  merits,  we,  of  course,  sustain  the  contention  that  by 
the  Act  the  defense  of  assumption  of  risk  remains  as  at  common 
law,  saving  in  the  cases  mentioned  in  Section  4;  that  is  to  say,  any 
case  where  the  violation  by  such  common  carrier  of  any  statute  enact- 
ed for  the  safety  of  employes  contributed  to  the  injury  or  death  of 
such  employe." 

Southern  Ry.  v  Crockett,  234  U.  S.  725 ;  34  S.  C. 
897. 

"The  very  recent  case  of  Seaboard  Air  Line  v  Horton  (1914), 
233  U.  S.  492,  34  S.  C.  635,  58  L.  Ed.  — ,  goes  still  farther  in  holding 
that  the  statute  referred  to  in  Sections  3  and  4  of  the  Act  means  only 
federal  statutes,  so  that  under  that  and  prior  decisions  assumption  of 
risk  remains  as  before,  except  as  modified  by  the  application  of  Sec- 
tion 4  to  federal  statutes,  and  that  the  common  law  still  obtains  with 
respect  to  assumption  of  risk  from  defective  appliances,  while  abro- 
gating the  fellow  servant  rule  of  the  common  law." 

Southern  Ry.  v  Hoiverton,  Ind.  1914,  105  N.  E. 
Rep.  1025. 


65 


ASSUMPTION  OF  EISK— COMMON  LAW  DEFENSE  REMAINS 

Defense  of  assumption  of  risk  is  not  eliminated,  ex- 
cept where  the  injury  has  happened  on  account  of  the 
violation  of  some  federal  statute  designed  for  the  pro- 
tection of  the  employe. 

Oherlin  v  Oregon  &c  Co.,  71  Or.  177;  142  Pac. 

554. 
Horton  v  Seaboard  Air  Line  Ry.,  162  N.  C.  424; 

78  S.  E.  494. 
Freeman  v  Poivell  (Tex.  Civ.  App.),  144  S.  W. 

1033. 
Neil  V  Idalio  &c  By.,  22  Idaho  74;  125  Pac.  331. 
Earlier  v  Kansas  City  &>c  Ry.,  88  Kan.  767 ;  129 
Pac.  1151;  43  L.  R.  A.  (N.  S.  1121). 
Doctrine  of  assumed  risk  remains  as  before  at  com- 
mon law,  save  in  exceptions  stated,  where  violation  of 
federal  safety  acts  contributed  to  injur}'. 

SoufJiern  Ry.  v  Hoiverton,  105  N.  E.  Rep.  1025 ; 

106  N.  E.  369. 
Hall  V  Vandalia  R.  R.,  169  111.  App.  12. 
Kendrick  v  Chicago  Sic  Ry.,  188  111.  App.  172. 
Devine  v  Chicago  &c  R.  R.,  185  111.  App.  488; 

Aff.  266  111.  248;  107  N.  E.  595. 
Truesdell  v  Chesapeake  &c  R.  R.,  159  Ky.  918; 
169  S.  W.  471. 
Risk  is  not  assumed  by  engineer  of  railroad's  negli- 
gence in  leaving  car  on  siding  Avithin  striking  distance. 
Wright  v  Yazoo  &c  R.  R.,  197  Fed.  94. 
Risk  is  not  assumed  of  injury  from  railroad's  negli- 
gence. 

Uawhins  v  St.  Louis  &c  By.,  174  S.  W.  Rep.  129. 
'riiornion  v  Seaboard  Air  Line,  98  S.  Car.  348; 
82  S.  E.  423. 
Wlicic  risks  from  railroad's  negligence  are  not  as- 
sumed iiiidtT  state  law,  question  held  immaterial. 

Cross  V  Chicago  kc  %..  177  S.  W.  Rep.  1123. 


(in 


ASSUMPTION  OF  RISK— COMMON  LAW  DEFENSE  REMAINS 

Defense  of  assumed  risk  is  available  in  cases  not  with- 
in exception  of  act. 

Columhia  &c  R.  R.  v  Sauter,  223  F.  604. 
FishY  Chicago,  Rock  &c  R.  R.,  172  S.  W.  340. 
Barker  v  Kansas  City  &c  Ry.,  88  Kans.  767 ;  129 

P.  1151;  43  L.  E.  A.  (N.  S.)  1121. 
Guana  v  Southern  Pac.  Co.,  139  Pac.  782. 
Act  does  not  abolish  defense  of  assumed  risk  where 
the  master  breaks  a  common  law  duty,  as  distinguished 
from  the  specified  statutory  duty. 

Neiv  York  &c  R.  R.  v  Vizzari,  210  F.  118;  126  C. 
C.  A.  632. 
Act  overcomes  provisions  of  State  constitutions  as  to 
assumed  risk. 

Bramlett  v  Southern  Ry.,  98  S.  C.  319 ;  82  S.  E. 
501. 
Track  walker  assumes  risk  from  trains  properly  oper- 
ated. 

Connelly  v  Penna  R.  R.,  201  F.  54;  119  C.  C.  A. 
392. 
Instructions  as  to  assumed  risk  held  proper. 

Nashville  &c  R.  R.  v  Henry,  158  Ky.  88;  164  S. 
W.  310. 
Doctrine  of  assumption  of  risk  is  not  applicable  in 
regard  to  defective  condition  of  tracks,  causing  cars  to 
become  uncoupled. 

Hayes  v  Wahash  R.  R.,  180  111.  App.  511. 
Risk  of  negligence  of  his  flagman  is  not  assumed  by 
conductor. 

Penna.  R.  R.  v  Govghnor,  208  F.  961;  126  C.  C. 
A.  39. 
Assumption  of  risk  is  no  defense  in  action  by  switch- 
man, where  engineer  stopped  train  with  a  jerk. 

La  Mere  v  Railway  Transfer  Co.,  145  N.  W. 
1068. 


67 


ASSUMPTION  OF  RISK— COMMON  LAW  DEFENCE  REMAINS 

Interstate  commerce  Act  makes  no  change  in  rule  ex- 
cept as  to  safety  appliances. 

Glenn  v  Cincinnati  &c  Ry.,  157  Ky.  453;  163  S. 

W.  461. 
La  Mere  v  Railway  Transfer  Co.,  145  N.  AV. 
1068. 
Assumption  of  risk  is  no  defense  where  the  railroad 
has  violated  a  state  law  prohibiting  extra  hazardous  em- 
plo^Tnent. 

OpsaJil  V  Northern  P.  R.  R.,  78  Wash.  197 ;  138 
P.  681. 
Brakeman,  held  not  to  have  assimied  risk  of  injury 
from  conductor's  negligence  in  inspecting  manner   of 
loading  on  a  flat  car. 

Michigan  C.  R.  R.  v  Schaffer,  220  F.  809. 
Risk  is  not  assumed  of  danger  from  injury  by  side- 
tracked cars  moving  down  grade  with  unset  brakes. 
Illinois  C.  R.  R.  v  Steivart,  223  F.  30. 
Risk  of  injury  is  not  assumed  by  section  hand  because 
an  insufficient  number  of  men  were  ordered  to  remove  a 
motor  car  from  track. 

Missouri  &c  Ry.  v  Freeman,  168  S.  W.  69. 
Risk  is  not  assumed  by  engineer  from  negligent  ad- 
justment of  lever  of  ash  pan  just  from  repair  shop. 

Lloyd  V  Soy  them  Ry.,  166  N.  C.  24;  81  S.  E. 
1003. 
Assumed  risk  distinguished  from  contributory  negli- 
gence, the  one  barring,  the  other  only  diminishing  recov- 
ery. 

Chesapeake  &c  Ry.  v  De Alley,  159  Ky.  718;  169 
S.  W.  471. 
Risk  held  assiiinod  from  tracks  liaving  been  construct- 
ed too  close  togeth<'r'. 

Kirhov  Southern  Ry.,  84  S.  E.  491. 


68 


ASSUMPTION  OF  RISK— COMMON  LAW  DEFENCE  REMAINS 

Finding  that  yard  conductor  had  assumed  risk  of  neg- 
ligent operation  of  cars  running  by  gravity,  held  justi- 
fied, and  instruction  that  risks  incident  to  negligence  of 
railroad  officers  were  not  assumed,  properly  denied. 

Boldt  V  Penna.  R.  R.,  218  F.  367 ;  134  C.  C.  A. 
175. 
Assumption  of  risk  is  a  question  for  jury. 

McGovern  v  PMla.  R.  R.,  235  U.  S.  389. 
Defense  of  assumed  risk  may  be  made,  though  con- 
trary to  state  statute. 

Texas  &c  Ry.  v  White,  177  S.  W.  1185. 
A  roundhouse  foreman  who  stumbled  over  a  jack  and 
fell  under  a  locomotive  held  not  to  have  assumed  the  risk 
as  matter  of  law,  though  he  knew  the  insufficiency  of 
lights. 

Haivkins  v  St.  Louis  &c  R.  E.,  174  S.  W.  129. 
INSTRUCTION  that  if  a  person  of  ordinary  care 
would  have  continued  in  the  service  with  knowledge  of  a 
defect,  the  injured  employe  did  not  assume  the  risk,  error. 
Galveston  &c  Ry.  v  Hodnett,  163  S.  W.  13 ;  Kev'g 
155  S.  W.  678. 
Refusal  to  direct  verdict  because  of  assumed  risk,  up- 
held. 

Erie  R.  R.  v  Jacohus,  221  F.  335. 
Instruction  which  fails  to  except  from  risks  assumed 
those  resulting  from  the  railroad's  negligence,  error. 
Houston  &c  Ry.  v  Menefee,  162  S.  W.  1038. 


69 


ASSUMPTION    OF    EISK— DISTINGUISHED    FROM    CONTRIB- 
UTORY NEGLIGENCE 

Assumption  of  Hisk — Distinguished  from  contributory 
negligence. 

"Contributory  negligence  involves  the  notion  of  some  fault  or 
breach  of  duty  on  the  part  of  the  employe,  and  since  it  is  ordinarily 
his  duty  to  take  some  precaution  for  his  own  safety  when  engaged  in 
a  hazardous  occupation,  contributory  negligence  is  sometimes  defined 
as  a  failure  to  use  such  care  for  his  safety  as  ordinarily  prudent  em- 
ployes in  similar  circumstances  would  use.  On  the  other  hand,  the 
assumption  of  risk,  even  though  the  risk  be  obvious,  may  be  free 
from  any  suggestion  of  fault  or  negligence  on  the  part  of  the  em- 
ploye. The  risks  may  be  present  notwithstanding  the  exercise  of  all 
reasonable  care  on  his  part.  Some  employments  are  necessarily 
fraught  with  danger  to  the  workm.an — danger  that  must  be  and  is 
confronted  in  the  line  of  duty.  Such  dangers  as  are  normally  and 
necessarily  incident  to  the  occupation  are  presumably  taken  into 
account  when  fixing  the  rate  of  wages.  And  a  workman  of  mature 
years  is  taken  to  assume  risks  of  this  sort,  whether  he  is  actually 
aware  of  them  or  not.  But  risks  of  another  sort,  not  naturally  inci- 
dent to  the  occupation,  may  arise  out  of  the  failure  of  the  employer 
to  exercise  due  care  with  respect  to  providing  a  safe  place  to  work 
and  suitable  and  safe  appliances  for  the  work.  These  the  employe 
is  not  treated  as  assuming  until  he  becomes  aware  of  the  defect  or 
disrepair,  and  of  the  risk  arising  from  it,  unless  defect  and  risk  alike 
are  so  obvious  that  an  ordinarily  prudent  person  under  the  circum- 
stances would  have  observed  and  appreciated  them.  When  the  em- 
ployee does  know  of  the  defect,  and  appreciates  the  risk  that  is  at- 
tributable to  it,  and  then  if  he  continues  in  the  employment,  without 
objection,  or  without  obtaining  from  his  employer  or  his  representa- 
tive an  assurance  that  the  defect  will  be  remedied,  the  employe  as- 
sumes the  risk,  even  though  it  arise  out  of  the  master's  breach  of 
duty.  If,  however,  there  be  a  promise  of  reparation,  then  during 
such  time  as  may  be  reasonably  required  for  its  performance  or  until 
the  particular  time  specified  for  its  performance,  the  employe  relying 
upon  the  promise  does  not  assume  the  risk  unless  at  least  the  danger 
be  so  imminent  that  no  ordinarily  prudent  man  under  the  circum- 
stances would  rely  upon  such  promise." 

Seaboard  Air  Line  Co.  v  Norton,  233  U.  !S.  492. 
Gila  Valley  Ry.  Co.  v  Hall,  232  U.  S.  94. 
Texas  &c  liy.  v  Harvey,  228  U.  S.  319. 
Clarke  v  Holmes,  7  Hurl.  &  Norm.  937. 


70 


ASSUMPTION    OF   RISK— DISTINGUISHED    FROM    CONTRIBU- 
TORY NEGLIGENCE 

Assumption  of  risk  is  distinguished  from  want  of 
care. 

"The  argument  is  that  even  although  the  engineer  did  not  know 
of  the  protruding  cars  and  therefore  did  not  consciously  incur  the 
great  risk  to  result  from  the  collision,  yet  as  by  proper  precaution  he 
could  have  discovered  the  fact  that  the  cars  were  protruding,  he  must 
be  considered  to  have  assumed  the  risk  which  resulted  from  want  of 
care.  But  this  argument,  as  well  as  that  he  must  have  known  that 
such  danger  might  arise,  has  no  relation  to  the  doctrine  of  assump- 
tion of  the  risk  and  only  call  for  the  application  of  the  principle  of 
contributory  negligence  or  of  fellow  servant." 

Yazoo  V  Mississippi  V.  R.  R.,  235  U.  S.  376 ;  Aff. 
207  F.  281. 

"Plaintiff  certainly  did  not  assume  the  risk  that  the  engineer 
would  negligently  run  the  train  at  a  high  and  dangerous  rate  of 
speed,  contrary  to  his  duty.  If  we  say  that  he  assumed  the  risk  of 
his  own  negligence  then  we  make  of  no  effect  the  provision  of  the 
statute  that  his  contributory  iiegligence  shall  not  bar  recovery,  but 
shall  only  diminish  the  amount  of  damages  to  be  awarded.  We  are 
therefore,  of  opinion  that  there  is  not  in  this  case  any  question  of 
assumed  risk  and  that  the  court  therefore  properly  refused  to  sub- 
mit the  question  of  assumed  risk  to  the  jui*y." 

Mattocks  V  Chicago  &c  Ry.,  187  111.  App.  529. 

"The  railroad  is  chargeable  with  the  negligence  of  the  engineer, 
and  the  fellow-servant  doctrine  does  not  apply.  The  deceased  did  not 
assume  the  risk  occasioned  through  the  negligence  of  the  engineer  and 
such  risk  or  danger  could  not  be  termed  one  of  the  ordinary  risks  or 
dangers  of  the  employment  of  the  deceased  switchman." 

Devine  v  Chicago  &c  Ry.,  185  111.  App.  488. 
Instruction  in  terms  of  Act,  correct. 

Devine  v  Chicago  &c  Ry.,  185  111.  App.  488. 


71 


SAFETY  ACTS— VIOLATION  OF— EXCLUDES  DEFENSES 

Safety  Acts — Violation  of — Excludes  defences. 

"Where  the  injury  has  been  occasioned  in  part  by  the  failure  of 
the  carrier  to  comply  with  the  exactions  of  an  Act  of  Congress  enact- 
ed to  promote  the  safety  of  employes,  the  statute  abolishes  the  de- 
fense of  contributory  negligence,  not  only  as  a  bar  to  recovery,  but 
for  all  purposes." 

Grand  Trunk  Ry.  v  Lindsay,  233  U.  S.  42. 
Contributory  negligence  of  employe  does  not  diminish 
damages  where  any  safety  act  has  been  violated. 

Grand  Trunk  kc  R.  R.  v  Lindsay,  233  U.  S.  42; 
34  S.  C.  581;  Aff.  201  F.  836;  120  C.  C.  A. 
166. 
Southern  Ry.  v  Jacobs,  81  S.  E.  99. 
TJiornhro  v  Kansas  City  &c  Ry.,  91  Kan.  684; 
139  P.  410;  Aff.  92  Kan.  681;  142  P.  250. 
Contributory  negligence  is  no  defense  when  a  safety 
act  has  been  violated,  but  the  fact  may  be  considered  in 
reduction  of  damages. 

La  Mere  v  Railway  Tr.  Co.,  145  N.  W.  1068. 
Johnston  v  Chicayo  kc  Ry.,  164  S.  W.  260. 
P^ailure  of  a  brakeman  to  report  defective  condition  of 
an  automatic  coupler  is  not  defense. 

Nashville  &c  Ry.  v  Henry,  158  Ky.  88 ;  164  S.  W. 
310. 
Evidence  as  to  violation  of  safet}^  act  being  proxi- 
mate cause,  held  sufficient. 

La  Mere  v  Railivay  Tr.  Co.,  145  N.  W.  1068. 
Contributory  negligence  of  employe  does  not  affect 
amount  of  recovery  where  a  safety  act  has  been  violated. 
St.  Louis  &c  Ry.  v  Anderson,  173  S.  W.  834. 


72 


SAFETY  ACTS— VIOLATION  OF— EXCLUDES  DEFENSES 

Where  a  safety  appliance  act  has  been  violated,  de- 
fense of  contributory  negligence  is  not  available  even  for 
reduction  of  damages. 

Lucas  V  Peoria  &iC  R.  R.,  171  111.  App.  1. 
Reasonable  care  does  not  preclude  liability  for  not 
keeping  proper  couplers. 

St.  Louis  &c  R.  R.  V  Conarty,  155  S.  W.  93. 
Thornhro  v  Kansas  City  R.  R.,  92  Kan.  681; 

142  P.  250. 
Gordon  v  Neiv  Orleans  &c  Ry.,  64  So.  1014. 
Contributory  negligence  does  not  affect  amount  of  re- 
covery where  railroad  has  failed  to  provide  proper  coup- 
lers. 

Burho  V  Minneapolis  &c  R.  R.,  141  N.  AV.  300. 
Evidence  that  an  examination  made  two  days  after 
accident  disclosed  defects  of  a  coupler,  admissible. 
Lucas  V  Peoria  &c  Ry.,  171  111.  App.  1. 
Assumption  of  risk:     Defense  of  is  not  permitted 
where  a  safety  act  has  been  violated. 

Thornhro  v  Kansas  City  &c  Ry.,  91  Kan.  684; 
Aff.  92  Kan.  681 ;  142  P.  250. 

Act  ma}^  modify  or  abolish  rules  of  law  and  of  courts 
regarding  assumption  or  risk  and  contributory  negli- 
gence. 

Deiheikis  v  Lint-helt  Co.,  201  111.  454;  104  N.  E. 
211. 
Exemption  applies  with  like  effect  as  if  promulgated 
by  state  law. 

Hogarty  v  PhUa.  &c  R.  R.,  245  Pa.  443;  91  A. 
854. 


73 


SAFETY  ACTS— VIOLATION  OF— EXCLUDES  DEFENSES 

Express  exception,  where  assumed  risk  is  no  defense, 
shows  that  in  other  cases,  its  effect  is  to  bar. 

Seaboard  Air  Line  v  Horton,  233  U.  S.  492;  34 
S.  C.  635;  58  L.  Ed.  1062;  rev.  162  N.  C. 
424;  78  S.  E.  494. 
Southern  R.  R.  v  Crockett,  234  U.  S.  725 ;  34  S. 
C.  897;  58  L.  E.  1564. 
Act  is  in  j^cf^i  materia  with  safety  appliance  acts. 

North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248. 
Defects  in  engines,  cars,  or  appliances  render  railroad 
liable. 

Pfeijfer  v  Oregon  &c  Co.,  144  Pac.  762. 
Both  simple  and  complex  tools  must  be  free  from  de- 
fects. 

Gerkas  v  Oregon  &c  Co.,  146  Pac.  970. 
Safety  appliances  are  required  for  all  cars  and  trains, 
regardless  of  for  what  service  they  are  employed. 

United  States  v  Pere  Marquette  R.  R.,  211  F. 
220. 
ELECTRIC  CARS:  ''Engines"  and  "locomotive  en- 
gineers" in  safety  appliance  act  includes  electric  motors 
and  motormen. 

Spokane  &c  Ry.  v  Campbell,  217  F.  518;  133  C. 
C.  A.  370. 
DUE  DILIGENCE  of  railroad  to  keep  safety  appli- 
ances in  good  working  order  is  not  sufficient  defence. 

Deck  V  St.  Louis  kc  R.  R.,  220  U.  S.  580;  31  S. 
C.  617;  55  L.  Ed.  590;  Rev.  86  C.  C.  A.  95; 
158  F.  931 ;  14  A.  &  E.  Cas.  233. 

"In  Grand  Trunk  Ry.  v  Lindsay,  233  U.  S.  42;  34  S.  C.  581;  58 
L.  Ed,  the  complaint  in  one  paragraph  counted  on  a  violation  of  the 
Safety  Appliance  Act  and  the  Employers'  Liability  Act,  and  in  the 
other,  solely  on  the  latter  act,  and  the  cause  was  tried  and  the  jury 
instructed  under  the  Safety  Appliance  Act.  The  Circuit  Court  of 
Appeals  sustained  the  judgment  by  applying  the  provisions  of  the 
Employers'  Liability  Act,  and  the  judgment  was  affirmed  in  the 
Supreme  Court  on  the  authority  of  Seaboard  Air  Line  Co.  v  Duvall 
(1912),  225  U.  S.  477," 

Southern  Ug.  v  lloivcrton,  Ind.  1914;  105  N.  E. 
Ifcp-  1025. 

74 


SAFETY  ACTS— ONLY   FEDERAL   STATUTES 

Safety  Acts — Only  Federal  Statutes. 

"By  the  phrase  'any  statute  enacted  for  the  safety  of  employes,' 
Congress  evidently  intended  Federal  Statutes,  such  as  the  Safety 
Appliance  Acts  (March  2,  1893,  c.  196,  27  Stat.  531;  March  2,  1903, 
c.  976,  32  Stat.  943;  April  14,  1910,  c.  160,  36  Stat.  298;  February 
17,  1911,  c.  103,  36  Stat.  913),  and  the  Hours  of  Service  Act  (Febru- 
ary 4,  1907,  c.  2939,  34  Stat.  1415)." 

Seaboard  Air  Line  v  Hortoyi,  233  U.  S.  492,  503. 

Lauer  v  Northern  Pac.  R.  R.,  145  Pac.  606. 

Federal  statutes  only  are  referred  to  by  the  term 

''statutes"  in  the  statutory  exceptions  of  assumption  of 

risk  and  contributory  negligence  not  being  permitted  as 

defences  when  Safety  Acts  violated. 

Gee  V  Lehigh  Valley  R.  R.,  148  N.  Y.  S.  882 ;  163 
App.  Div.  274. 
Violation  of  HOURS  OF  SERVICE  ACT  renders  rail- 
road liable  for  injury. 

St.  Louis  &c  R.  R.  V  McWhistler,  145  Ky.  427; 
140  S.  W.  672. 
Hours  of  Service  Act:  Mere  violation  of,  is  not  suffi- 
cient to  justify  recovery,  unless  negligence  of  railroad 
concurs. 

Osborne's  Admr.  v  Cincinnati  &c  R.  R.,  158  Ky. 
176;164S.  W.  818. 


75 


CONSTRUCTION— FEDERAL  DECISIONS  GOVERN 

Construction — Federal  decisions  govern — 

Act  must  be  construed  in  accord  with  decisions  of 
Federal  Courts  as  to  modes  of  procedure  where  they  con- 
stitute a  substantial  part  of  the  case. 

Central  Vermont  Ry.  v  White,  238  U.  S.  507; 

Aff.  87  Vt.  330. 
Seaboard  Air  Line  Ry.  v  Norton,  228  U.  S.  434. 

"The  United  States  Courts  have  uniformly  held  that  as  a  mat- 
ter of  general  law  the  burden  of  proving  contributory  negligence  is 
on  the  defendant.  Congress  evidently  intended  that  this  statute 
should  be  construed  in  the  light  of  these  and  other  decisions  of  the 
Federal  Courts." 

Central  Vermont  Ry.  v  White's  Admx.,  238  U. 
S.  507;  Aff.  87  Vt.  330. 
Act  must  be  construed  according  to  the  decisions  of 
the  United  States  Supreme  Court. 

Toledo  &c  Ry.  v  Slavin,  236  U.  S.  454;  35  S.  C. 

306;  Rev.  88  Oh.  St.  536;  109  N.  E.  1077. 

St.  Louis  R.  R.  V  Hesterly,  228  U.  S.  702;  33  S. 

C.  703;  57  L.  Ed.  1031;  Rev.  98  Ark.  240; 

135  S.  W.  874. 

McAdoiv  V  Kansas  City  W.  Ry.,  164  S.  W.  188. 

Nashville  &c  Ry.  v  Henry,  158  Ky.  88 ;  164  S.  W. 

310. 
Cincinnati  &c  Ry.  v  Nolan,  161  Ky.  205;  170  S. 

W.  650. 
Kendricks  v  Chicago  kc  Ry.,  188  111.  App.  172. 
Louisville  &c  R.  R.  v  Miller,  156  Ky.  677 ;  162  S. 
W.  73. 
These  are  conclusive  and  exclusive. 

Montgomery  v  Southern  Vac.  Ry.,  64  Or.  597; 

131  Pac.  507. 
Horton  v  Oregon  kc  R.  &  N.  Co.,  72  AYash.  503 ; 
]  30  P.  897. 
Federal  decisions  as  to  jjiocedure  nnist  l)e  followed 
whf-n  .su1)staTitial  [)art  of  case  is  affected. 

Central  Vermont  R.  R.  v  White,  238  U.  S.  507; 

Aff.  87  Vt.  330. 
Seaboard  Air  Line  Ry.  v  Moon,  228  U.  S.  434. 
76 


CONSTRUCTION— RULES  OF 

Construction — Rules  of — 

Right  of  action  must  be  determined  by  the  Act. 
Peek  V  Boston  &c  By.,  223  F.  448. 
Delaivare  &c  By.  v  Yurhonis,  220  F.  429. 
Molliter  v  Wahash  B.  B.,  180  Mo.  App.  84;  168 

S.  W.  250. 
Fithian  v  St.  Louis  &c  By.,  188  F.  842. 
Act  authorizes  action  which  could  be  maintained  oth- 
erwise. 

Cory  V  Lake  Shore  &c  By.,  208  F.  847. 
Jackson  Lumber  Co.  v  Courcey,  9  Ala.  App.  488 ; 
63  So.  749. 
Act  operates  where  railroad  and  employe  were  en- 
gaged in  interstate  commerce. 

Louisville  &c  By.  v  Strange' s  Admx.,  161  S.  W. 
239. 
Act  is  not  to  be  extended  by  implication,  being  in  dero- 
gation of  common  law. 

McClaugherty  v  Bogue  Biver  El.  Co.,  140  Fac. 
64. 


77 


CONSTRUCTION— RULES  OF 

Act  is  remedial  in  character  and  should  be  so  con- 
strued as  to  prevent  the  mischief  and  advance  the  rem- 
edy. 

St.  Louis  &c  By.  v  Conley,  187  F.  949;  110  C.  C. 
A.  97. 
Act  enlarges,  but  does  not  abridge,  liability,  and  re- 
coveiy  may  be  had  at  common  law. 

Groiv  V  Oregon  &c  Ry.,  138  Pac.  398. 
Statutory  remedy  may  be  cumulative  and  not  abro- 
gate common  law  action. 

Hayes  v  Wabash  R.  R.,  180  111.  App.  511 ;  Dis. 
234U.  S.  86;34S.  C.  729. 
Act  is  not  retroactive. 

Whifree  v  Northern  Pac.  By.,  227  U.  S.  296; 
AfP.  97  C.  C.  A.  392. 

"This  statute  permits  recovery  in  cases  where  recovery  could 
not  be  had  before,  and  takes  from  defendant  defenses  which  for- 
merly were  available.  *  *  *  Such  a  statute  should  not  be 
construed  as  retrospective.  It  introduced  a  new  policy  and  quite 
radically  changed  the  existing  law." 

Winfree  v  Northern  Pac.  R.  R.  Co.,  227  U.  S. 
296-302. 
Relief  gi'anted  is   governed  by   rulings   of  Federal 
Courts,  and  remedy  is  exclusive. 

Miller  v  Kansas  City  &c  Ry.,  180  Mo.  App.  371 ; 
168  S.  W.  336. 
Laws  of  state  may  be  looked  to,  as  to  relief. 

Hogarty  v  Philadelphia  R.  R.,  240  Pa.  443;  91 
A.  854. 


78 


JURISDICTION—STATE   COURTS   HAVE   CONCURRENT 

Jurisdiction — State  courts  have  concurrent — 

State  Courts  have  concurrent  jurisdiction. 

Corhett  v  Boston  &c  Ry.,  219  Mass.  351;  107  N. 

E.  60. 
Kamhoris  v  Oregon  &c  Co.,  146  Pac,  1097. 
McCullough  v  Chicago  &c  Ry.,  142  N.  W.  67. 
Southern  R.  R.  v  lioiverton,  105  N.  E.  1025; 
Kev.  101  N.  E.  121;  Reh.  den.  106  N.  E.  369. 
Moliter  v  Wabash  R.  R.,  180  Mo.  App.  84;  168 

S.  W.  250. 
Easter  v  Virginia  Ry.,  86  S.  E.  37. 
Superior  Court  of  Washington  has  competent  juris- 
diction. 

Gibson  V  Bellingham  &  N.  Ry.,  213  F.  488. 


79 


JURISDICTION— STATE   COURTS  HAVE  CONCURRENT 

Jurisdiction — Removal  of  cause  prohibited — 

"The  language  of  both,  the  amendment  and  the  Judicial  Code, 
Section  28,  clearly  inhibits  removal  of  a  cause  arising  under  this  Act 
from  a  State  Court  upon  the  sole  ground  of  diversity  of  citizenship. 
The  same  decision  has  been  announced  frequently  by  lower  Courts." 

Kansas  City  Southern  By.  v  Leslie,  238  U.  S. 
599;  Rev.  112  Ark.  305:    (overruling  Van 
Brimmer  v  Texas  &c  By.,  190  F.  394.) 
Symonds  v  St.  Louis  &c  By.,  192  F.  353. 
Strauser  v  Chicago  &c  B.  B.,  193  F.  293. 
Saiek  v  Pe7i7ia.  B.  B.,  193  F.  303. 
Lee  V  Toledo  &c  By.,  193  F.  685. 
Vllrich  V  Neiv  York  &c  By.,  193  F.  768. 
Htdac  V  Chicago  &c  By.,  194  F.  747. 
McChesney  v  Illinois  Central  B.  B.,  197  F.  85. 
DeAtley  v  Chesapeake  &  Ohio  By.,  201  F.  591. 
Bice  v  Boston  &  Maine  B.  B.,  203  F.  580. 
Kelly's  Admx.  v  Chesapeake  &  Ohio  By.,  201  F. 

602. 
Teel  V  Chesapeake  &  Ohio  By.,  204  F.  918. 
Patton  V  Cincinnati  &c  /?;?/.,  208  F.  29. 
Eng  V  Southern  Pacific  By.,  210  F.  92. 
Burnett  v  Spokane  &c  i?i/.,  210  F.  94. 
Notwithstanding  local  prejudice. 

Lomhardo  v  7?06'^ow  &c  E.  i?.,  223  F.  427. 
Peek  V  Boston  kc  B.  B.,  223  F.  448. 
Nor  altliough  same  count  states  cause  of  action  un- 
der state  statute  or  common  law. 

Strother  v  Union  Par.  U.  B.,  220  F.  731.  (D.  C. 
Mo.) 
*Mf  a  cause  of  action  (Mjiitainin,^-  all  tlio  elements  of  re- 
movability be  joined  with  a  count  stating  a  cause  of  ac- 
tion not  originally  cognizable  in  the  Fedei'al  court,  never- 
theless the  (h'fcndant  may  remove  the  former  cause  of 
action  and  this  will  canv  the  entire  case  with  it."  Jh. 


«0 


JURISDICTION— STATE  COURTS  HAVE  CONCURRENT 

Where  the  facts  alleged  bring  the  cause  of  action 
within  the  Act,  the  case  is  not  removable  from  state  court 
on  any  ground. 

Symonds  v  St.  Louis  &c  R.  R.,  192  F.  353. 
Lee  V  Toledo,  St.  L.  &c  R.  R.,  193  F.  685. 
Kansas  City  &c  Ry.  v  Leslie,  112  Ark.  305 ;  167 

S.  W.  83;Rev.  35S.  C.  884. 
Hidac  Y  Chicago  &  N.  W.  R.,  194  F.  747. 
DeAtley  v  Chesapeake  &  0.  Ry.,  147  Ky.  315; 

144  S.  W.  95. 
Lombardo  v  Boston  &  M.  R.  R.,  223  F.  427. 
Where  cause  has  been  improperly  removed,  right  to 
have  it  remanded  is  not  waived  by  filing  reply. 
Burnett  v  Spokane  &c  Ry.,  210  F.  94. 
Cause  is  not  removable  though  diversity  of  citizen- 
ship exists  and  requisite  amount  involved. 

Pankey  v  Atchison  &c  Ry.,  180  Mo.  App.  185; 

168  S.  W.  274. 
Peck  V  Boston  &  M.  R.  R.,  223  F.  448. 
Southern  Ry.  v  Puckett,  85  S.  E.  809. 
Not  removable  on  ground  of  local  influence  and  preju- 
dice. 

Strausser  v  Chicago,  B.  &  Q.  R.  R.,  193  F.  293. 
Nor  on  ground  of  different  domicile. 

Jones  V  Kansas  City  &c  Ry.,  68  So.  401. 
When  plaintiff  bases  his  action  unequivocally  on  the 
Act,  cause  is  not  removable,  even  if  facts  alleged  are  in- 
sufficient. 

Smith  V  Camas  Prairie  R.  R.,  216  F.  799. 


81 


JURISDICTION— STATE  COURTS  HAVE  CONCURRENT 

Cause  may  not  be  removed,  although  the  same  com- 
plaint states  cause  of  action  under  common  law,  state 
statute  or  Act,  after  being  held  a  single  cause  of  action. 
Rice  V  Boston  &c  Rij.,  203  F.  580. 
Case  brought  in  state  court  is  not  removable  although 
it  would  be  otherwise. 

Patton  V  Cincinnati  &c  By.,  208  F.  29. 
Lloyd  V  North  Carolina  By.,  162  N.  C.  485 ;  78 
S.  E.  489. 
Act  is  constitutional,  although  permitting  no  removal 
on  ground  of  diversity  of  citizenship. 

Kelly's  Admx.  v  Chesapeake  kc  By.,  201  F.  602. 
Mandamus  for  removal,  see  Ex  parte  Roe,  234  U.  S. 
70;  34  S.  Ct.  722;  58  L.  Ed.  1217. 

"It  is,  of  course,  difficult  and  to  me  impossible  to  spell  out,  sur- 
mise or  guess  any  good  reason  for  denying  to  a  defendant  common 
carrier  engaged  in  interstate  commerce  the  right  to  have  a  case  aris- 
ing under  the  Act,  when  diversity  of  citizenship  and  requisite  amount 
in  controversy,  or  local  prejudice  of  the  extent  named,  exist,  tried  in 
the  Federal  Court,  but  Congress  has  so  decreed  in  plain  language  and 
I  discover  no  ground  or  theory  on  which  the  courts  can  make  over  the 
statute  referred  to." 

Lomhardo  v  Boston  kc  By.,  223  Fed.  427. 
Peck  V  Boston  &c  By.,  223  Fed.  448. 
Contra :  Van  Brunner  v  Texas  &c  By.,  190  Fed. 
394. 


82 


ACTION— JOINDER  OF— PERMITTED 

Action — Joinder  of,  permitted — 

State  courts  have  concurrent  jurisdiction  and  action 
under  Act  may  be  joined  with  one  under  state  liability 
act. 

Atlantic  Coast  Line  Ry.  v  Jones,  9  Ala.  App. 
449;  63  So.  693. 
Action  under  Act  and  another  under  common  law  may 
be  joined. 

Bouchard  v  Central  Vermont  R.  R.,  89  A.  475. 

"The  proper  procedure  is  to  plead  the  facts,  and  a  recovery- 
may  then  be  had  accordingly,  as  the  evidence  may  develop  a  case 
under  one  law  or  the  other." 

Vandalia  R.  R.  v  Stringer,  Ind.  106  N.  E.  865. 
Missouri  &c  Ry.  v  Wulf,  226  U.  S.  570. 
Ullrich  V  New  Yorlc  &c  R.  R.,  193  Fed.  768. 
Jones  V  Chesapeake  &c  R.  R.,  149  Ky.  566;  149 

S.  W.  951. 
St.  Louis  &c  Ry.  v  Scale,  229  U.  S.  156;  33  S.  C. 

651 ;  57  L.  Ed.  1129 ;  Ann.  Cas.  1914,  c.  156. 
Wabash  Ry.  Co.  v  Hayes,  234  U.  S.  86;  34  S.  C. 

729;  58  L.  Ed.  1226. 
Southern  Ry.  v  Hoiverton,  105  N.  E.  1025. 
Southern  Ry.  v  Ansley,  8  Ga.  App.  325 ;  68  S.  E. 

1086. 

"Facts  which  give  the  right  to  recover  under  the  state  law,  and 
those  which  give  the  right  to  recover  under  the  federal  statute,  con- 
stitute separate  and  distinct  causes  of  action,  for  the  federal  stat- 
ute is  exclusive  where  the  incident  is  embraced  within  interstate 
commerce  service  and  does  not  apply  where  it  is  in  intra-state  serv- 
ice. The  two  causes  of  action  may,  however,  be  joined  in  the  same 
complaint." 

Midland  Valley  Ry.  v  Ennis,  159  S.  W.  214. 


83 


ACTION— JOINDER  OF— PERMITTED 

"We  have  no  doubt  that  a  plaintiff  may  join,  in  distinct  counts, 
in  one  complaint,  a  sufficiently  stated  cause  of  action,  arising  out  of 
the  one  transaction,  for  breach  of  duty  under  the  state  Employers' 
Liability  Act  and  for  breach  of  duty  under  the  federal  Employers' 
Liability  Act;  but  he  cannot  recover  as  upon  authority  of  the  local 
statute  in  a  case  governed  exclusively  by  the  national  statute,  nor 
can  he  recover  as  upon  the  authority  of  the  national  statute,  in  a 
case  that  does  not  fall  within  the  national  enactment," 

Ex  parte  Atlantic  Coast  Line  By.,  Ala.  1914,  67 
So.  Rep.  256. 
A  common  law  action  and  another  under  Act  may  be 
consolidated  or  tried  together. 

LinkJiam  v  Boston  &c  B.  B.,  77  N.  H.  Ill;  88  A. 
709. 


84 


ACTION— JOINDER  OF— PERMITTED 

Joinder  of  actions  under  Act,  state  statutes  and  com- 
mon law  may  be  made. 

Wahash  R.  R.  v  Hayes,  234  U.  S.  86 ;  34  Sup.  Ct. 

729. 
Delaware  Slc  Ry.  v  Yunkonis,  220  F.  429;  Aff. 

213  F.  537. 
Thomas  v  Chicago  &ic  Ry.,  202  F.  766. 
Ullrich  V  New  York  &c  Ry.,  193  F.  768. 
Bankson  v  Illinois  Central  R.  R.,  196  F.  171. 
Taylor  v  Southern  Ry.,  101  N.  E.  506. 
Bouchard  v  Central  Vermont  Ry.,  87  Vt.  399;  89 
Atl.  475. 
When  two  causes  of  action  result  in  one  injury,  there 
is  no  misjoinder. 

Alabama  &c  Ry.  v  Neal,  8  Ala.  App.  591 ;  62  So. 
554. 
Action  held  not  dismissed  by  pendency  of  prior  ac- 
tion. 

Tinkham  v  Boston  &c  Ry.,  77  N.  H.  Ill ;  88  Atl. 
709. 
Previous  action,  under  state  law,  which  has  been  dis- 
missed, no  bar. 

Hogan  v  New  York  &c  Ry.,  223  F.  890. 
The  argument  that  case  is  governed  by  Act  and  not  by 
state  law  may  first  be  made  on  motion  for  new  trial. 

Moliter  v  Wahash  R.  R.,  180  Mo.  App.  84;  168 
S.  W.  250. 
When  proof  shoAvs  cause  of  action  under  Act  and  case 
is  brought  under  state  law,  demurrer  to  evidence  is  suf- 
ficient to  raise  objection. 

Moliter  v  Wahash  R.  R.,  180  Mo.  App.  84;  168 
S.  W.  250. 
Objection  that  Federal  Act  applies  is  in  time  if  made 
when  fact  disclosed  by  proof. 

Kamboris  v  Oregon  &c  Co.,  145  Pac.  1097. 
ACTION  TRANSITORY,  not  local. 

Anderson  v  Louisville  &c  R.  R.,  210  F.  689. 
85 


PLEADING— REQUIREMENTS 

Pleading — Requirements. 

Act  need  not  be  expressly  pleaded, 

"To  say  that  the  Act  may  not  be  applied  to  a  situation  which  is 
within  its  provision  unless  in  express  terms  the  provisions  of  the  Act 
be  formally  invoked,  aside  from  its  manifest  unsoundness,  considered 
as  an  original  proposition,  the  contention  is  not  open  as  it  was  ex- 
pressly foreclosed  in  Seaboard  Air  Line  v  Duvall,  225  U.  S.  477,  482." 

Grand  Trunk  By.  v  Lindsay,  233  U.  S.  42 ;  Aff. 
201  F.  836. 

"The  court  was  presumed  to  be  cognizant  of  the  enactment  of 
the  Employers'  Liability  Act  and  to  know  that  with  respect  to  the 
responsibility  of  interstate  carriers  by  railroads  to  their  employes  in- 
jured in  such  commerce  after  its  enactment  it  had  the  eflrect  of  super- 
seding state  laws  upon  the  subject.  Therefore,  the  pleader  was  not 
required  to  refer  to  the  Federal  Act  and  the  reference  actually  made 
to  the  Kansas  statute  no  more  vitiated  the  pleading  than  _a  reference 
to  any  other  repealed  statute  would  have  done." 

Missouri  &c  By.  v  Wulf,  226  U.  S.  570;  33  S.  C. 
135 ;  57  L.  Ed.  355. 

"It  is  not  necessary  to  plead  the  terms  and  provisions  of  the 
Federal  Act.  It  is  only  necessary  to  plead  facts  that  show  that  the 
Federal  Act,  and  not  the  state  law,  applies.  This  tenders  an  issue 
of  fact,  which,  if  denied  by  the  reply,  must  be  determined  as  any 
other  issue  of  fact  in  the  case.  If  the  defendant  below  should  fail  to 
plead  facts  that  would  take  the  transaction  out  of  the  law  of  the 
forum  and  bring  it  within  the  operation  of  the  federal  law,  then  it 
could  not  be  permitted  over  the  objection  of  plaintiff  to  introduce  any 
evidence  in  proof  of  such  facts  because  no  such  issue  is  presented 
by  the  pleadings.  If,  however,  the  defendant  does  not  plead  facts 
that,  if  proven,  would  bring  the  transaction  within  the  operation  of 
the  Federal  law,  yet  if  the  evidence  introduced  by  plaintiff  in  sup- 
port of  the  allegations  of  his  petition  shows  that  he  was  engaged  in 
interstate  commerce,  or  if  the  defendant,  without  objection  on  the 
part  of  the  plaintiff,  introduced  evidence  of  such  facts,  then  it  is  the 
duty  of  the  court  to  charge  the  provisions  of  the  Federal  Act,  instead 
of  the  provisions  of  the  state  statutes,  unless  there  should  be  a  con- 
flict of  evidence,  in  which  event  an  amendment  should  be  permitted 
and  the  issue  of  fact  submitted  to  the  jury,  with  proper  instructions  to 
apply  the  state  or  the  Federal  law  as  the  jury  may  determine  the 
fact  to  be." 

Eric  n.  B.  V  Welsh,  Oliio  1013, 105  N.  E.  189. 


S6 


PLEADING— REQUIREMENTS 

Declaration  or  complaint  must  allege  facts  bringing 
case  within  Act. 

"When  the  evidence  was  adduced  it  developed  that  the  real  case 
was  not  controlled  by  the  state  statute  but  by  the  Federal  statute. 
In  short,  the  case  pleaded  was  not  proved  and  the  case  proved  was 
not  pleaded.  In  that  situation,  the  defendant  interposed  the  objec- 
tion, grounded  on  the  Federal  statute,  that  the  plaintiffs  were  not 
entitled  to  recover  on  the  case  proved.  We  think  the  objection  was 
interposed  in  due  time  and  that  the  state  courts  erred  in  overruling 
it." 

St.  Louis  &c  Ry.  v  Seale,  229  U.  S.  156. 

"While  state  as  well  as  Federal  courts  are  presumed  to  be  cog- 
nizant of  the  Employers'  Liability  Act,  and  to  recognize  that  such 
law  is  supreme  with  respect  to  the  responsibilities  of  railroads  en- 
gaged in  interstate  commerce  to  their  employes  injured  or  killed  in 
such  commerce,  yet,  before  a  state  court  is  called  upon  to  administer 
the  Federal  law  in  any  case,  the  party  desiring  to  avail  himself  of 
any  right,  privilege  or  immunity  thereunder,  must  by  appropriate 
pleading,  or  by  evidence,  bring  to  the  attention  of  the  court  the  fact 
that  his  cause  of  action  or  his  defense  falls  within  its  terms.  Obvious- 
ly, it  supersedes  all  state  laws  and  regulations  as  to  causes  of  action 
falling  within  its  terms,  yet  in  an  action  where  neither  the  pleadings 
nor  the  evidence  bring  the  cause  within  the  purview  of  that  Act,  and 
the  trial  in  the  court  below  proceeded  upon  the  theory  that  the  state 
statute  governed,  this  court  is  precluded  from  holding  that  the  Fed- 
eral statute  should  have  controlled;  for,  necessarily,  in  such  case  the 
state  law  alone  could  be  applied." 

Chicago  &c  Ry.  v  McBee,  Okla.,  145  Pac.  331. 


87 


PLEADING— REQUIREMENTS 

Plaintiff  alleged  that ' '  at  the  time  of  the  injury  dece- 
dent was  in  the  service  of  defendant  as  brakeman  upon 
its  said  train,  which  was  then  being  used  and  operated  on 
one  of  its  highways  of  interstate  commerce,  and  that  said 
cars  and  trains  were  then  being  used  in  interstate  com- 
merce, or  were  being  used  in  intra-state  commerce,  and 
that  one  of  the  two  states  of  facts  is  true  and  she  does 
not  know  and  cannot  state  which  is  true, ' '  The  court  say : 
"The  precise  question  was  before  this  court  in  the  case  of  South 
Covington  &c  Ry.  v  Finan's  Admr.,  153  Ky.  340;  155  S.  W.  742.  In 
the  first  paragraph  plaintiff  based  her  right  of  recovery  on  the  com- 
mon law.  In  the  second  paragraph  she  pleaded  that  the  defendant 
was  engaged  in  interstate  commerce  and  her  decedent  was  injured 
while  employed  in  interstate  commerce,  thus  invoking  the  aid  of  the 
Federal  Employers'  Liability  Act.  In  her  third  paragraph  she  rested 
her  case  on  the  statue  of  the  state  of  Ohio.         *         *  While  the 

precise  question  has  not  been  passed  upon  by  the  Supreme  Court  of 
the  United  States,  its  rulings  on  other  questions  of  a  similar  charac- 
ter tend,  we  think,  to  sustain  the  views  herein  announced.  The  decis- 
ions of  that  court  make  it  reasonably  plain  that  there  can  be  no  such 
thing  as  an  alternative  right  of  action  under  the  Federal  or  state 
law;  for  both  cannot  occupy  the  same  field,  and  if  the  Federal  sta- 
tute is  applicable  the  state  law  is  excluded  by  reason  of  the  suprem- 
acy of  the  former  under  our  National  Constitution.  Thus  in  the  case 
of  St.  Louis  &c  Ry.  v  Scale,  222  U.  S.  156;  33  S.  Ct.  651;  57  L.  Ed. 
1129,  plaintiff's  petition  stated  a  case  under  the  state  law.  It  devel- 
oped from  the  evidence  that  the  real  case  was  controlled,  not  by  the 
state  statute,  but  by  the  Federal  statute.  It  was  held  that  the  case 
proved  was  not  pleaded,  and  that  plaintiff  was  not  entitled  to  recover. 
In  the  case  of  St.  Louis  &c  Ry.  v  Hesterly,  228  U.  S.  702,  33  S.  Ct. 
703,  57  L.  Ed.  1031,  it  was  held  that  defendant  was  not  estopped  to 
rely  on  the  Federal  statute  by  a  plea  of  contributory  negligence  on 
the  ground  that  the  right  of  action  was  in  the  plaintiff,  and  ias  he 
relied  on  the  state  law,  defendant  had  no  choice  if  it  was  to  defend 
on  facts.  In  the  case  at  bar  the  motion  to  elect  was  made  in  due 
time.  Defendant  had  the  right  to  know  in  advance  under  which  law 
it  would  be  required  to  defend." 

Louisville  &c  Rij.  v  Strange' s  Adynr.,  Ky.,  161 
S.  W.  Rep.  239. 


88 


PLEADING— REQUIREMENTS 

DECLARATION  OR  COMPLAINT  must  allege  facts 
showing  that  defendant  was  a  common  carrier  engaged 
in  interstate  commerce  and  that  plaintiff  was  in  its  em- 
ployment and  in  the  performance  of  his  duty  in  connec- 
tion with  such  interstate  commerce  traffic  at  time  of  in- 
jury. 

Walton  V  Southern  Ry.,  179  Fed.  175. 
St.  Louis  R.  R.  V  Hesterly,  98  Ark.  240;  135  S. 
W.  874. 
Complaint  may  state  cause  of  action  under  Act,  Safe- 
ty Act  and  state  statute. 

Hayes  v  Wabash  R.  R.,  234  U.  S.  86;  180  111. 
App.  511. 
Where  Act  is  not  pleaded  by  either  party,  dismissal 
held  error. 

Bitondo  v  Neiv  York  Central  Ry.,  149  N.  Y.  S. 
339 ;  163  App.  Div.  823. 
Act  controls,  when  complaint  states  facts,  bringing 
cause  within  the  same,  although  a  cause  of  action  is  also 
stated  under  state  law. 

Peck  V  Boston  &c  R.  R.,  223  F.  448. 
Plaintiff  must  show^  that  case  is  within  Act. 

Chicago  &c  Ry.  v  McBee,  Okla.,  145  Pac.  331. 
Complaint  held  properly  drawn. 

Delaware  &c  Ry.  v  Yurkonis,  220  F.  429 ;  Aff. 
213  F.  537;  App.  Dis.  238  U.  S.  439;  35  S. 
Ct.  902. 
Mcintosh  V  St.  Louis  &c  Ry.,  182  Mo.  App.  288; 
168  S.  W.  821. 
Separate  counts  may  declare  on  Act  and  state  law,  but 
recovery  can  be  had  on  only  one  charge. 

Ex  Parte  Atlantic  Coast  Line  Ry.,  67  So.  Rep. 

256;  Eev.  9  Ala.  App.  499;  63  So.  693. 
Atkinson  v  Bullard,  Ga.,  80  S.  E.  Rep.  220. 
Complaint  may  be  amended  to  state  cause  of  action 
under  state  law. 

Midland  Valley  R.  R.  v  Ennis,  159  S.  W.  214. 

89 


PLEADING— REQUIREMENTS 

Omission  to  allege  facts  regarding  interstate  com- 
merce may  be  supplied  by  answer. 

Vickery  v  Neiv  London  &c  Ry.,  87  Conn.  634 ;  89 

A.  277. 
WJiite  V  Central  Vermont  Ry.,  89  Atl.  618. 
When  declaration  alleges  common  law  action  and  rep- 
lication counts  on  Act,  there  is  departure. 

Niles  V  Central  Vermont  Ry.,  89  Atl.  Eep.  629. 
AVhere  petition  does  not  refer  to  Act  or  state  statute, 
motion  to  specify  character  of  business  should  be  made. 
Mcintosh  \  St.  Louis  &c  Ry.,  182  Mo.  App.  288; 
168  S.  W.  821. 
Complaint  held  good. 

Pittsburgh  kc  Ry.  v  Farmers  kc  Co.,  108  N.  E. 
Rep.  108. 


90 


PLEADING— REQUIREMENTS 

Allegations  are  necessary,  showing  both  parties  to 
have  been  engaged  in  interstate  commerce. 

St.  Louis  &c  Ry.  v  Hesterly,  98  Ark.  240;  135  S. 

W.  874. 
Ismura  v  Great  Northern  Ry.,  58  Wash.  316; 

108  Pac.  774. 
Bay  V  Merrill  &  Ring  Lumber  Co.,  211  Fed.  717. 
Allen  V  Tuscarora  &c  Ry.,  229  Pa.  97;  78  Atl. 
34;30L.  R.  A.  (N.  S.)  1096. 
Complaint  must  allege  that  plaintiff  Avas  engaged  in 
the  performance  of  his  duties  or  work  within  scope  of  his 
employment. 

189  111.  App.  89. 
Complaint  need  not  be  in  terms  drawn  under  Act. 

Southern  Ry.  v  Howerton,  101  N.  E.  121. 
Formal  reference  to  Act  not  necessary. 

Denoyer  v  Raihvay  Transfer  Co.,  149  N.  W.  175. 
Southern  Ry.  v  Ansley,  68  S.  E.  Rep.  1086. 
General  allegation  of  negligence,  sufficient  under  state 
law^,  is  good. 

Louisville  &c  Ry.  v  Steivart's  Adnix.,  156  Ky. 
550;  161  S.  W.  557;  Mod.  163  S.  W.  755. 
Averments  of  due  care  in  count  under  Safety  Act, 
surplusage. 

Lucas  V  Peoria  &c  Ry.,  171  111.  App.  1. 
Petition  held  sufficient. 

Kelly's  Admx.  v  Chesapeake  &c  Ry.,  201  Fed. 

602. 
Ahrens  v  Chicago  &c  Ry.,  141  N.  W.  Rep.  297. 
Illinois  Central  Ry.  v  Stewart,  223  Fed.  30. 
Complaint  held  insufficient. 

Vickery  v  Neiv  London  &c  Co.,  87  Conn.  634;  89 
Atl.  277. 


91 


PLEADING— REQUIREMENTS 

PLEA  of  engagement  in  interstate  commerce,  held 
sufficient. 

San  Antonio  &c  Ry.  v  Wagner,  166  S.  W.  Rep. 
24. 
In  action  under  state  law,  Act  must  be  pleaded  as 
defence. 

St.  Louis  &c  Ry.  v  Scale,  148  N.  W.  1099. 
Plea  of  contributory  negligence  which  fails  to  allege 
knowledge  of  plaintiff  of  danger  or  that  danger  was  ap- 
parent to  ordinary  observation,  defective. 

Illinois  Central  Ry.  v  Lowery,  63  So.  Rep.  952 ; 
49  L.  R.  A.  1149. 
Plea  held  sufficient,  although  not  alleging  knowledge 
of  defect  or  failure  in  due  care  to  acquire  knowledge. 

Atlantic  Coast  Line  Ry.  v  Jones,  9  Ala.  App. 
499;63So.  Rep.  693. 
Plea,  assumption  of  risk,  see 

Wahask  Ry.  v  Gretzinger,  104  N.  E.  Rep.  69. 
Vickery  v  New  London  Ry.,  87  Conn.  634 ;  89  Atl. 
Rep.  277. 


92 


PEOCEDURE— REQUIREMENTS 

Procedure — Requirements. 

RULES  OF  STATE  LAW  as  to  pleading,  evidence 
and  procedure  should  be  conformed  to,  except  as  modified 
by  Act. 

McAdoiv  V  Kansas  &c  By.,  164  S.  W.  185. 
Fleming  v  Norfolk  &c  By.,  76  S.  E.  Kep.  212. 
Lomsville  &c  By.  v  Johnson's  Admx.,  161  Ky. 

824;171S.  AY.  847. 
Central  Vermont  By.  v  White,  238  U.  S.  508. 
Federal  practice  need  not  be  followed. 

Hoivell  V  Atlantic  Coast  Line  By.,  99  S.  Car.  417 ; 
83  S.  E.  639. 
State  court  is  not  bound  to  follow  Federal  practice  by 
directing  verdict  upon  preponderance  of  evidence. 

Louisville  &c  By.  v  Holloivay's  Admr.,  163  Ky. 
125 :  173  S.  W.  343. 


93 


PROCEDURE— REQUIREMENTS 

VERDICT  may  be  returned  by  three-fourths  of  jury 
(under  state  law). 

Chesapeake  &c  Ry.  v  Kelly's  Admr.,  161  Ky. 
655;  171  S.  W.  185;  Keh.  den.  160  Ky.  296; 
168  S.  W.  736. 
Louisville  &c  By.  v  Winkler,  162  Ky.  843 ;  173 
S.  W.  151. 
Five-sixth  jury  law  applies. 

Winters  v  Minneapolis  &c  Ry.,  126  Minn.  260; 
148  N.  W.  106-1096. 
Baniholis  v  Minneapolis  &c  Ry.,  128  Minn.  112; 
150  N.  ^Y.  85. 
Interest  on  verdict  not  allowed. 

Norton  v  Erie  R.  R.,  148  N.  Y.  S.  771;  Aff.  144 

N.  Y.  656. 

"W-liere  rules  of  law,  governing  the  trial,  are  the  same 

in  Federal  and  state  procedure,  it  is  immaterial  whether 

action  and  judgment  i)i*oceed  under  Federal  or  state  law. 

Illinois  Central  R.  R.  v  Nelson,  212  F.  69. 


94 


PROCEDURE— REQUIREMENTS 

EVIDENCE  must  establish  that  defendant  owned  and 
operated  railroad  as  common  carrier  engaged  in  inter- 
state or  foreign,  commerce,  and  that  plaintiff  was  injured 
while  employed  by  defendant  in  such  commerce  and  in 
course  of  his  duties. 

Bay  V  Merrill  &  Ring  L.  Co._,  211  F.  717. 
Evidence  which  would  bring  case  to  jury  under  state 
law  will  do  so  under  Act. 

Louisville  &c  Ry.  v  Winlder,  162  Ky.  843;  173 
S.  W.  151. 
Negligence  of  carrier  must  be  shown. 

Cincinnati  &c  Ry.  v  Goldston,  156  Ky.  410;  161 
S.  W.  246. 
Rule  of  evidence  as  to  negligence,  res  ipsa  loquitur, 
not  applicable. 

Curtis  V  Neiv  York  &c  Ry.,  144  N.  Y.  S.  1007; 
159  App.  Div.  757. 


95 


PROCEDURE— REQUIREMENTS 

INSTRUCTION  in  language  of  section  held  proper. 
Devine  v  Chicago  &c  By.,  185  111.  App.  488 ;  Aff. 
226  111.  248;  107  N.E.  595. 
Court  should  instruct  whether  action  comes  within 
Act  or  under  common  law  rules. 

Hoag  V  Washington  &c  Ry.,  144  Pac.  574;  Mod. 
147  Pac.  756. 
Where  cause  based  on  both  Act  and  state  statute  and 
case  shown  to  be  ^N-ithin  Act,  affirmative  charge  should  be 
given  on  state  statute  count. 

Ex  Parte  Coast  Line  Ry.,  67  So.  Rep.  256 ;  Rev. 
9  Ala.  499;  63  So.  693. 
AAHiere  neither  party  relies  on  Section  4,  failure  to 
charge  in  regard  thereto,  jiot  error. 

Devine  v  Chicago  kc  Ry.,  266  111.  248 ;  107  N.  E. 
595 ;  Aff .  185  111.  App.  488. 
Instruction  as  to  negligence,  violent  jerking,  see: 

Cincinnati  kc  Ry.  v  Goldston,  156  Ky.  410 ;  161 
S.  W.  246. 

"Where  an  instruction  embodies  several  propositions  of  law,  to 
some  of  which  no  objection  could  properly  be  taken,  a  general  excep- 
tion to  the  entire  instruction  will  not  entitle  the  exceptor  to  take 
advantage  of  a  mistake  or  error  in  some  single  or  minor  proposition 
therein." 

Norfolk  V  Western  Ry.,  229  U.  S.  114. 


96 


APPEAL  AND  ERROR— REQUIREMENTS 

Appeal  and  Error — Requirements. 

THE  SUPREME  COURT  OF  THE  UNITED 
STATES  will  consider  only  questions  of  interpretation  of 
the  Act  and  not  those  involving  considerations  of  general 
law,  depending  in  no  sense  upon  the  particular  signifi- 
cance of  the  x\ct,  unless  it  clearly  appears  that  error  has 
been  committed. 

Southern  Ry.  v  Gadd,  233  U.  S.  572. 

"A  Federal  right,  in  order  to  be  reviewable  here,  must  be  set  up 
and  denied  in  a  state  court,  and  such  claim  of  denial  is  not  properly 
brought  to  the  attention  of  this  court  when  it  appears  that  the  state 
court  declined  to  pass  on  the  question  because  it  was  not  raised  in  the 
trial  court,  as  required  by  state  practice." 

Louisville  kc  Ry.  v  Woodford,  234  U.  S.  46;  34 
S.  Ct.  739;58L.  E.  1202. 
The  Supreme  Court  of  United  States  will  confirm  a 
judgment  of  the  Circuit  Court  of  Appeals,  where  a  ques- 
tion of  interpretation  of  Act  is  not  involved. 

Southern  Ry.  v  Gadd,  233  U.  S.  572;  34  Sup.  Ct. 
696 ;  Aff.  207  F.  277 ;  125  C.  C.  A.  21. 
Allegation  that  plaintiff  was  engaged  in  mining  coal 
for  interstate  commerce  does  not  necessarily  bring  case 
within  Act  for  review  by  U.  S.  Supreme  Court. 

Delaivare  &c  Ry.  v  Yurkonis,  238  U.  S.  439 ;  35 
Sup.  Ct.  902;  Des.  App.  220  F.  429;  Aff.  213 
F.  537. 
Decree  of  state  court,  refusing  recovery  because  of 
contributory  negligence,  is  not  controlling. 

Cincinnati  &c  Ry.  v  Sivamis'  Admr.,  160  Ky. 
458;  169  S.  W.  886. 

"The  point  that  the  Indiana  statute  had  been  superseded  by  this 
Act,  not  having  been  specially  set  up  in  the  state  court  and  there 
passed  upon,  it  is  obvious  that  the  point  has  not  been  saved." 

Chicago  &c  Ry.  v  Eackett,  228  U.  S.  559 ;  33  Sup. 

Ct.  581 ;  57  L.  Ed.  966. 
See  Chicago  &>c  Ry.  v  Holliday,  145  Pac.  786. 
Where  claim  to  immunity  from  state  legislation  is 
shown  by  record,  the  question  of  the  Federal  right  will  be 
considered  by  the  United  States  Supreme  Court. 

97 


APPEAL  AND  ERROR— REQUIREMENTS 

North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248. 
The  Supreme  Court  of  United  States  will  not  consider 
questions  of  matters  of  pleading,  admission  of  evidence 
or  of  general  law,  where  construction  of  Act  is  not  in- 
volved. 

Central  Vermont  Ry.  v  White,  35  Sup.  Ct.  865 ; 

Aff.  87  Vt.  330;89  Atl.  616. 
Yazoo  V  Midland  kc  Ry.,  235  U.  S.  376;  35  S. 
Ct.  130;  Aff.  125  C.  C.  A.  25 ;  207  F.  281. 
Misleading  instructions  may  serve  as  basis  for  writ 
of  error  to  Supreme  Court. 

Seaboard  Air  Line  v  Padgett,  236  U.  S.  668;  35 
Sup.  Ct.  4-81;  Aff.  99  S.  C.  356;  83  S.  E.  633. 
A  decision  that  deceased  was  an  employee  of  an  ex- 
press company,  and  that  the  liability  of  the  railroad  was 
not  controlled  by  the  Act,  is  not  reviewable  in  the  U.  S. 
Supreme  Court. 

Missouri  &c  Ry.  v  West,  232  U.  S.  682;  34  S.  Ct. 
471;  Dis.  Holmes  v  Jeiuell,  134  P.  655. 
Amendment  of  1910  withdraws  right  of  removal  and 
requires  review  of  Federal  questions  by  writ  of  error  to 
state  court. 

Lloyd  V  North  Carolina  R.  R.,  162  N.  C.  485; 

78  S.  E.  489. 

A  judgment  of  non-suit  on  ground  of  failure  to  prove 

emplojTuent  in  interstate  commerce  does  not  present  a 

question  of  jurisdiction  to  sustain  direct  writ  of  error  to 

Supreme  Court. 

Farrugin  v  Phila.  &c  Ry.,  233  U.  S.  352;  34  S. 
C.  591. 


98 


LIMITATION— TWO  YEARS 

Limitation — Two  years. 

Limitation  of  two  years  controls  state  law. 

Shannon  v  Boston  &c  By.,  77  N.  H.  349;  92  Atl. 
167. 
AMENDMENT  after  two  years  so  as  to  bring  case 
within  Act,  held  not  introducing  new  cause  of  action. 

Smith  V  Atlantic  Coast  Line  By.,  210  Fed.  761. 
An  amendment,  substituting  plaintiff  as  personal  rep- 
resentative of  deceased  for  herself  as  sole  beneficiary,  is 
not  equivalent  to  commencing  a  new  action,  barred  after 
two  years,  even  though  the  original  declaration  is  based 
on  a  state  statute. 

Missouri  &c  By.  v  Wulf,  226  U.  S.  570. 
"The  change  was  in  form  rather  than  in  substance.  It  introduced 
no  new  or  different  cause  of  action,  nor  did  it  set  up  any  different 
state  of  facts  as  the  ground  of  action,  and  therefore  it  relates  back 
to  the  beginning  of  the  suit."    lb. 


99 


EXEMPTION— CONTRACTS  FOR— VOID 

Exemption — Contracts  for — void. 

"If  Congress  possesses  the  power  to  impose  the  lia- 
bility, which  we  here  hold  that  it  does,  it  also  possesses 
the  power  to  insure  its  efficacy  by  prohibiting  any  con- 
tract, rule,  regulation  or  device  in  evasion  of  it. ' ' 

Phila.  &c  R.  R.  V  Schubert,  224  U.  S.  603. 

Second  Employers'  LiahHity  Cases,  223  U.  S.  1. 
"That  the  provisions  of  §  5  were  intended  to  apply  as  well  to  ex- 
isting as  to  future  contracts  and  regulations  of  the  described  charac- 
ter, cannot  be  doubted.  *  *  *  Prior  arrangements  were  nec- 
essarily subject  to  this  paramount  authority.  The  power  of  Congress, 
in  its  regulation  of  interstate  commerce,  to  impose  this  liability,  was 
not  fettered  by  the  necessity  of  maintaining  existing  arrangements 
and  stipulations  which  would  conflict  with  the  execution  of  its  policy." 

PMa.,  Bait.,  &  Wash.  R.  R.  v  Schubert,  224  U. 
S.  603. 
Contract  with  express  messenger,  held  void. 

Taylor  v  Wells  Fargo  &  Co.,  220  F.  796. 
Acceptance  of  relief  or  benefits  does  not  bar  action. 

Wagner  v  Chicago  &  A.  R.  R.,  265  111.  245;  106 
N.  E.  809;  Aff.  180  111.  App.  196. 
Exemption  agreement  by  which  employe  must  present 
written  claim  within  thirty  days  after  accident,  void. 

Chicago  &c  R.  R.  v  Pearce,  Ark.,  175  S.  ^N.  1160. 
Benefits  paid  by  lessee  railroad  may  be  set  off. 

Wagner  v  Chicago  kc  R.  R.,  180  111.  App.  196; 
Aff.  265  111.  245 ;  106  N.  E.  809. 
Existing   and   future    contracts    of    relief   are    con- 
demned. 

Philadelphia  &c  R.  R.  v  Schubert,  224  U.  S.  603; 
32  S.  C.  589 ;  56  L.  Ed.  91 ;  Aff.  36  App.  Div. 
565. 


100 


ACTION  FOR  DEATH— REPRESENTATIVE  MUST  BRING 

Action  for  Death — Representative  must  bring — 

PERSONAL  REPRESENTATIVE  alone  may  sue; 
plaintiff  must  be  administrator  or  executor,  not  widow 
nor  relative,  in  own  name. 

Fithian  v  St.  Louis  &c  Ry.,  188  F.  842. 
La  Casse  v  Neiv  Orleans  &c  Ry,,  64  So.  1162. 
St.  Louis  &c  Ry.  v  Brothers,  165  S.  W.  488. 
Penny  v  New  Orleans  &ic  Ry.,  135  La.  962 ;  66  So. 

313. 
Missouri  &c  Ry.  v  Lenahan,  135  Pac.  383. 
Anderson  v  Louisville  &  N.  Ry.,  210  F.  689. 
Vaughan  v  St.  Louis  &c  Ry.,  177  Mo.  App.  155; 

164  S.  W.  144. 
Rich  V  St.  Louis  &c  Ry.,  166  Mo.  App.  379;  148 

S.  W.  1011. 
Cincinnati  &c  Ry.  v  BonJiam,  130  Tenn.  435 ;  171 

S.  W.  79. 
Missouri  &c  Ry.  v  Wulf,  226  U.  S.  570. 
American  R.  R.  v  Birch,  224  U.  S.  547. 
Personal  representative  means  executor  or  adminis- 
trator. 

Rivera  v  Atchison  &c  Ry.,  149  S.  W.  223. 
Ancillary  as  well  as  domicilary  administrator  may 
sue. 

Anderson  v  Louisville  &c  Ry.,  210  F.  689. 
Appearance  as  administratrix,  after  widow  has  ob- 
tained judgment,  does  not  cure  error. 

Dungan  v  St.  Louis  &c  Ry.,  165  S.  W.  1116. 
"Widow  cannot  recover  for  herself  and  as  next  friend 
for  children. 

Kansas  City  &c  Ry.  v  Pope,  152  S.  W.  185 ;  Reh. 
den.  153  S.  W.  763. 


101 


ACTION  FOR  DEATH— REPRESENTATIVE  MUST  BRING 

"If  the  Federal  statute  was  applicable,  the  right  of  recovery,  if 
any,  was  in  the  personal  representative  of  the  deceased,  and  no  one 
else  could  maintain  the  action." 

St.  Louis  &c  Ry.  v  Seale,  229  U.  S.  156,  158. 

Troxell  v  Delaware  &c  R.  R.,  227  U.  S.  434. 

Missouri  kc  Ry.  v  Wulf,  226  U.  S.  570. 

"The  words  of  the  Act  are  too  clear  to  be  other  than  strictly  fol- 
lowed. They  give  an  action  for  damages  to  the  person  injured  or,  'in 
case  of  his  death  *  *  *  to  his  or  her  personal  representa- 
tive.' It  is  true  that  the  recovery  of  the  damages  is  not  for  the 
benefit  of  the  estate  of  the  deceased  but  for  the  benefit  'of  the  sur- 
viving widow  or  husband  and  children.'  But  this  distinction  between 
the  parties  to  sue  and  the  parties  to  be  benefited  by  the  suit,  makes 
clear  the  purpose  of  Congress.  To  this  purpose  we  must  yield.  * 
*  *  The  act  gives  the  right  of  action  to  personal  representa- 
tives only." 

American  R.  R.  v  Birch,  224  XT.  S.  547. 
Eastern  Ry.  v  Ellis,  Texas,  1913,  153  S.  W.  701. 
Plaintiff  cannot  intervene  in  representative  capacity 
on  appeal,  but  case  will  be  remanded. 

Missouri  &c  Ry.  v  Lenalian,  135  Pac.  383. 
That  right  of  action  is  in  representative  and  not  wid- 
ow, may  be  urged  on  appeal. 

LaCassa  v  Neiv  Orleans  &c  Ry.,  64  So.  1012. 
Where  instruction  has  been  refused,  that  representa- 
tive must  sue,  and  new  trial  asked  on  such  ground,  ques- 
tion is  presented  for  appeal. 

Cincinnati  &c  Ry.  v  Bonham,  130  Tenn.  435 ;  171 
S.  W.  79. 


102 


ACTION  FOR  DEATH— ACT  GRANTS  NEW  CAUSE  OF 

Action  for  Death — Act  grants  new  cause  of — 

Act  grants  new  cause  of  action  for  wrongful  death, 
independent  of  rights  of  deceased. 

Thomas  v  Chicago  &  A^.  W.  By.,  202  F.  766. 
Fogarty  v  North  Pac.  By.,  147  Pac.  652. 
Kansas  City  Southern  By.  v  Broivnwood,  166 
S.  W.  83. 
Right  of  action  is  distinct  cause  of  action,  not  survi- 
val of  decedent's. 

Farley  v  Neiv  York,  N.  H.  &c  By.,  87  Conn.  328; 
87  A.  990. 
Right  of  action  of  employe  is  extinguished  by  death. 
Garrett  v  Louisville  &c  By.,  235  U.  S.  308;  35 
S.  C.  32;  Aff.  117  C.  C.  A.  109;  197  F.  715. 
Decedent's  right  of  action  does  not  survive. 

Cain  V  Southern  By.,  199  F.  211. 
Decedent's  right  of  action  for  suffering  does  not  sur- 
vive before  amendments. 

Garrett  v  Louisville  &c  By.,  197  F.  715 ;  117  C. 
C.  A.  109. 
Right  of  action  must  be  based  entirely  on  Act. 
Missouri  &c  By.  v  Lenahan,  135  Pac.  383. 
Did  not  exist  at  common  law. 

Fithian  v  St.  Louis  &c  By.,  188  F.  842. 
Damages  which  deceased  might  have  recovered  are 
not  included.     (Previous  to  amendment.) 

Thomas  v  Chicago  &  N.  W.  By.,  202  F.  766. 


103 


ACTION  FOR  DEATH— ACT  GRANTS  NEW  CAUSE  OF 

Only  right  of  action  is  for  benefit  of  next  of  kin. 

St.  Louis  &c  Ry.  v  Hesterlij,  288  U.  S.  702;  33 
S.  C.  703 ;  57  L.  Ed.  1031 ;  Eev.  98  Ark.  240; 
135  S.  W.  874. 
Wliere  employe  survives  accident  for  several  hours, 
action  lies  by  representative. 

Michigan  Central  R.  R.  v  Vreeland,  227  U.  S. 
59;  33  S.  C.  192;  Rev.  189  F.  495. 
Action  by  representative  is  not  limited  to  cases  of  in- 
stantaneous death. 

Michigan  Central  R.  R.  v  Vreeland,  227  U.  S.  59. 
Where  decedent  survives  an  appreciable  length  of 
time,  breathing  ten  minutes,  action  survives. 

Capital  Trust  Co.  v  Great  Northern  Ry.,  149  N. 
W.  14. 
Prior  judgment  of  widow  for  benefit  of  herself  and 
children  bars  suit  under  Act. 

Delaivare  &c  R.  R.  v  Troxell,  200  F.  44;  118  C. 
C.  A.  272;  Aff.  227  U.  S.  434;  33  S.  C.  274. 
Letters  of  administration  may  issue,  although  the  de- 
ceased left  no  other  property. 

Gulf  &c  Ry.  V  Beezley,  153  S.  W.  651. 
Inchoate  right  is  sufficient. 

Eastern  Ry.  v  Ellis,  153  S.  W.  701. 


104 


ACTION  FOR  DEATH— BENEFICIARIES 

Action  for  Death — Beneficiaries. 

Act  supersedes  all  state  statutes  upon  the  subject  cov- 
ered by  it,  and  distribution  of  amount  recovered  is  deter- 
mined by  Act  and  not  by  state  law.    "Where  a  widow  sues 
as  administrator,  parents  have  no  claim. 
Taylor  v  Taijlor,  232  U.  S.  363. 
Act  gives  no  right  to  relatives  not  dependent. 

Jones  V  Charleston  kc  Ry.,  98  S.  C.  197;  82  S. 
E.  415. 
Reasonable  expectation  of  benefit  to  father  held  suffi- 
cient, and  no  proof  required  that  deceased  would  have 
contributed  to  his  support. 

Raines  v  Southern  Ry.,  85  S.  E.  294. 
Reasonable  expectation  of  pecuniary  benefit  is  suffi- 
cient, without  showing  actual  dependency. 

Dooley  v  Seaboard  Air  Line  Ry.,  163  N.  C.  454; 

79  S.  E.  970. 
Moffett  V  Baltimore  &c  Ry.,  220  F.  39 ;  135  C.  C. 
A.  607. 
Reasonable  expectation  of  pecuniary  benefit  is  for 
jury. 

Moffett  V  Baltimore  &c  0.  Ry.,  220  F.  39 ;  135  C. 
C.  A.  607. 
Married  sister,  who  had  boarded  deceased  and  to 
whom  he  had  made  monthly  contributions  of  money,  held 
not  dependent  nor  entitled  to  recover. 

Southern  Ry.  v  Vessel,  68  So.  336. 
Act  is  remedial  and  construed  liberally  in  favor  of 
beneficiaries. 

McFarland  v  Oregon  &c  Ry.,  138  Pac.  458. 
Question  who  are  next  of  kin  is  determined  by  state 
law. 

Kenney  v  Seaboard  Air  Line  Ry.,  82  S.  E.  968. 


105 


ACTION  FOR  DEATH— BENEFICIARIES 

Act  confers  benefit  only  for  relatives  specified. 

Thomas  v  Chicago  &  N.  W.  Ry.,  202  F.  766. 
Act  does  not  abrogate  right  of  action  of  parent,  guar- 
dian or  representative  for  death  under  Oregon  statute, 
repealing  only  what  conflicts. 

McFarland  v  Oregon  Electric  Ry.,  138  Pac.  458. 
Each    class    specified    excludes    succeeding    classes. 
Mother  has  no  right  to  recover  where  decedent  leaves 
widow  and  child. 

St.  Louis  &c  Ry.  v  Geer,  149  S.  W.  1178. 
Minor  son  by  decedent's  divorced  wife,  held  to 
have  reasonable  expectation  of  pecuniary  benefit. 

McGarvey's  Guardian  v  McGarvey's  Adm.,  163 
Ky.  242;  173  S.  W.  765. 
Child,  not  dependent  on  decedent  and  having  no  rea- 
sonable expectation  of  pecuniary  benefit  from  him,  can- 
not participate  in  recovery. 

McGarvey's  Guardian  v  McGarvey's  Adm.,  163 
Ky.  242;175S.  W.  765. 
Sister  of  decedent,  who  had  contributed  to  her  sup- 
port, held  entitled  to  recover. 

Richelieu  v  Union  Pac.  Ry.,  97  Neb.  360;  149  N. 
W.  772. 
Wife,  temporarily  separated  from  decedent  at  time  of 
his  death,  may  recover. 

Dunhar  v  Charleston  &c  Ry.,  186  F.  175. 
Abandonment  by  husband  of  wife  and  minor  child  is 
material  only  in  mitigation  of  damages. 

Fogarty  v  Northern  Pac.  Ry.,  147  Pac.  652. 
Brother,  dependent:  See  Jones  v  Charleston  &c  Ry., 
98  S.  C.  197 ;  82  S.  E.  415. 


106 


ACTION  FOR  DEATH— BENEFICIARIES 

WIDOW  is  not  required  to  elect  whether  to  rely  on 
one  suit  under  Act  or  one  in  her  own  name  under  state 
law. 

Corhett  v  Boston  &  M.  R.  R.,  219  Mass.  351 ;  107 
N.  E.  60. 
Widow  need  not  elect  between  her  cause  of  action  for 
the  benefit  of  the  estate  and  that  for  herself  and  next  of 
kin. 

St.  Louis  &c  Ry.  v  Rodgers,  176  S.  W.  696. 

"If  the  action  included  a  right  under  §  9,  the  recovery  was  for 
her  benefit  exclusively,  as  the  widow  of  the  decedent.  The  language 
of  the  section  is  that  the  right  of  action  given  to  the  employe  sur- 
vives to  his  personal  representatives  for  the  benefits  of  his  parents 
only  when  there  is  no  widow." 

Tcnjlor  v  Taylor,  232  U.  S.  363. 

"Two  of  the  plaintiffs,  the  father  and  mother,  in  whose  favor 
there  was  a  separate  recovery,  are  not  even  beneficiaries  under  the 
Federal  statute,  there  being  a  surviving  widow;  and  she  was  not  en- 
titled to  recover  in  her  own  name^  but  only  through  the  deceased's 
personal  representative." 

St.  Louis  &c  Ry.  v  Seale,  229  U.  S.  156. 
An  unmarried,  illegitimate  san  has  no  next  of  kin. 
Wilson's  Admr.,  157  Ky.  460;  163  S.  W.  493. 


107 


ACTION  FOR  DEATH— BENEFICIARIES 

ALIENS:  Act  gives  right  of  recovery  for  benefit  of 
non-resident  aliens. 

"The  policy  of  the  Act  accords  with  and  finds  expression  in  the 
universality  of  its  language.  Its  purpose  is  to  give  something  more 
than  to  give  compensation  for  the  negligence  of  railroad  companies. 
It  is  for  the  protection  of  life  that  compensation  for  its  destruction 
is  given  and  to  those  vi^ho  have  relation  to  it.  What  difference  can  it 
make  where  they  reside?  It  is  the  fact  of  their  relation  to  the  life 
destroyed  that  is  the  circumstance  to  be  considered,  whether  we  con- 
sider the  injury  received  by  them  or  the  influence  of  that  relation  upon 
the  life  destroyed." 

McGovern  v  Philadelphia  &c  R.  R.,  235  U.  S. 
389;  35  S.  C.  127;  Kev.  109  F.  975;  213  F. 
647;  234  U.  S.  86;  Rev.  180  111.  App.  511. 
Bamholis  v  Minneapolis  &iC  Ry.,  128  Minn.  112; 
150  N.  W.  385. 
Act  permits  suit  for  death  of  non-citizen  employe, 
killed  in  another  state. 

Waring  v  Baltimore  &  0.  Rij.,  33  Oh.  Cir.  Ct.  R. 
194. 


108 


ACTION  FOR  DEATH— PECUNIARY  LOSS 

Action  for  Death — Pecuniary  loss — 

"Recent  opinions  of  this  court  have  laid  down  the  rule  concerning 
the  measure  of  pecuniary  damages  to  beneficiaries  which  may  be  re- 
covered under  this  Act.  A  recovery,  therefor,  by  the  administrator, 
is  in  trust  for  designated  individuals  and  must  be  based  upon  their 
actual  pecuniary  loss." 

Kansas  City  Southern  Ry.  v  Leslie,  238  U.  S. 

599.  ^ 

Michigan  Central  R.  R.  v  Vreeland,  227  U.  S.  59. 
American  R.  R.  v  Didricksen,  227  U.  S.  145. 
Gulf,  Colorado  &c  Ry.  v  McGinnis,  228  U.  S. 

173. 
North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248. 
Norfolk  &  Western  Ry.  v  Holbrook,  235  U.  S. 

625. 

"In  every  instance  the  award  must  be  based  upon  money  values, 
the  amount  of  which  can  be  ascertained  only  upon  a  view  of  the 
peculiar  facts  presented.  In  the  present  case  there  was  testimony 
concerning  the  personal  qualities  of  the  deceased  and  the  interest 
which  he  took  in  his  family.  It  was  proper,  therefore,  to  charge  that 
the  jury  might  take  into  consideration  the  care,  attention,  instruc- 
tion, training,  advice  and  guidance  which  the  evidence  showed  he 
reasonably  might  have  been  expected  to  give  his  children  during 
their  minority,  and  to  include  the  pecuniary  value  thereof  in  the 
damages  assessed.  But  there  was  nothing — indeed  there  could  be 
nothing — ^to  show  the  hypothetic  injury  which  might  have  befallen 
some  unidentified  adult  beneficiary  or  dependent  next  of  kin.  The 
ascertained  circumstances  must  govern  in  every  case.  We  think  the 
trial  court  plainly  erred  when  it  declared  that  where  the  persons 
suffering  the  injury  are  the  dependent  widow  and  infant  children  of 
a  deceased  husband  and  father  the  pecuniary  injury  suffered  would 
be  much  greater  than  where  the  beneficiaries  were  adults  or  depen- 
dents who  were  mere  next  of  kin." 

Norfolk  &c  Western  Ry.  v  Holbrook,  235  U.  S. 
625;  Rev.  215  F.  687.  (Three  judges  dis- 
senting. ) 


109 


ACTION  FOR  DEATH— PECUNIARY  LOSS 

"The  statutory  action  of  an  administrator  is  not  for  the  equal 
benefit  of  each  of  the  surviving  relatives  for  whose  benefit  the  suit  is 
brought.  Though  the  judgment  may  be  for  a  gross  amount,  the  in- 
terest of  each  beneficiary  must  be  measured  hy  his  or  her  individual 
pecuniary  loss.  That  apportionment  is  for  the  jury  to  return.  This 
wHl,  of  course,  exclude  any  recovery  on  behalf  of  such  as  show  no 
pecuniary  loss." 

Gulf  &c  Rij.  V  McGinnis,  228  IT.  S.  173. 

"The  recovery  must  be  limited  to  compensating  those  relatives 
for  whose  benefit  the  administrator  sues  as  are  shown  to  have  sus- 
tained some  pecuniary  loss." 

Gulf  &c  Rij.  V  McGinnis,  228  U.  S.  173. 
Michigan  Central  Ry.  v  Vreeland,  227  U.  S.  59. 
American  R.  R.  v  Didr'ichsen,  227  U.  S.  145. 

"The  cavise  of  action  which  was  created  on  behalf  of  the  injured 
employe  did  not  survive  his  death  nor  pass  to  his  representatives.  But 
the  Act,  in  case  of  death  of  such  employe  from  his  injury,  creates  a 
new  and  distinct  right  of  action  for  the  benefit  of  the  dependent  rela- 
tives named  in  the  statute.  The  damages  recoverable  are  limited  to 
such  loss  as  results  to  them  because  they  have  been  deprived  of  a  rea- 
sonabl  expectation  of  pecuniary  benefits  by  the  wrongful  death  of  the 
injured  employe.  The  damage  is  limited  strictly  to  the  financial  loss 
thus  sustained.  The  couit  below  went  beyond  the  limitation  by  charg- 
ing the  jury  that  they  might,  in  estimating  the  damages,  'take  into 
consideration  the  fact  that  they  are  the  father  and  mother  of  the 
deceased  and  the  fact  that  they  are  deprived  of  his  society  and  any 
care  and  consideration  he  might  take  of  them,  or  have  for  them  dur- 
ing his  life.'  The  loss  of  the  society  or  companionship  of  a  son  is  a 
deprivation  not  to  be  measured  by  any  money  standard.  It  is  not  a 
pecuniary  loss  under  a  statute  such  as  this.  Laying  out  of  consid- 
eration the  indefiniteness  of  the  term,  'care  and  consideration,'  as 
elements  in  addition  to  the  loss  and  damage  of  such  pecuniary  assist- 
ance as  the  parents  of  the  deceased  might  have  reasonably  anticipated 
from  their  son,  it  is  enough  for  the  purpose  of  this  case  to  say  that 
there  was  no  allegation  of  such  loss,  nor  any  evidence  relating  to  the 
subject,  or  from  which  its  pecuniary  value  might  have  been  esti- 
mated." 

American  R.  R.  of  Porto  Rico  v  Didrichsen,  227 
U.  S.  145. 


110 


ACTION  FOR  DEATH— PECUNIARY  LOSS 

"The  pecuniary  loss  is  not  dependent  upon  any  legal  liability  of 
the  injured  person  to  the  beneficiary.  That  is  not  the  sole  test.  There 
must,  however,  appear  some  reasonable  expectation  of  pecuniary  as- 
sistance or  support  of  which  they  have  been  deprived.  Compensa- 
tion for  such  loss  manifestly  does  not  include  damages  by  way  of 
recompense  for  grief  or  wounded  feelings,  *  *  *  jjqj.  ^^le  in- 
estimable loss  of  society  and  companionship.  *  *  *  This 
widow  may  have  been  deprived  of  some  actual  customary  service  of 
deceased,  capable  of  measurement  by  some  pecuniary  standard,  and 
in  some  degree  that  service  might  include  as  elements  care  and 
advice.  But  there  was  neither  allegation  nor  evidence  of  such  loss  of 
service,  care  or  advice.  The  jury  were  erroneously  told  to  estimate 
the  value  from  their  own  experiences." 

Mich.  Cent.  R.  R.  Co.,  v  Vreeland,  227  U.  S.  59. 
"In  the  nature  of  the  case,  evidence  cannot  be  very  definite  as  to 
the  actual  amount  of  the  pecuniary  loss  sustained  in  a  case,  but  it 
does  devolve  upon  plaintiff  to  show  those  general  facts  which  are 
necessarily  within  the  general  knowledge  of  the  beneficiaries  and 
which  bear  upon  the  financial  resources  and  prospects  of  themselves, 
as  well  as  those  of  decedent." 

McCullough  v  Chicago  &c  Ry.,  160  Iowa  524; 
146  N.  W.  Rep.  70. 

"The  proper  estimate  can  usually  be  arrived  at  with  approxi- 
mate accuracy  by  taking  into  account  the  calling  of  the  deceased,  and 
the  income  derived  therefrom;  his  health,  age,  talents  and  habits  of 
industry;  his  success  in  life  in  the  past,  as  well  as  the  amount  of 
money  in  aid  or  services  which  he  was  accustomed  to  furnish  the 
next  of  kin;  and  if  the  verdict  is  greatly  in  excess  of  this  sum  thus 
arrived  at,  the  court  will  set  it  aside  or  cut  it  dowm." 

Hutchins  v  St.  Paul  Ry.,  44  Minn.  5 ;  46  N.  W. 

79. 
Approved  McCullough  v  Chicago  &iC  Ry.,  160 
Iowa  524;  146  Pac.  Rep.  70. 


Ill 


ACTION  FOR  DEATH— PECUNIARY  LOSS 

"The  proper  measure  of  damages  is  the  present  worth  of  the 
amount  which  it  is  reasonably  probable  the  deceased  would  have  con- 
tributed to  the  support  of  the  parent  during  the  latter's  expectancy 
of  life,  in  proportion  to  the  amount  he  was  contributing  at  the  time 
of  his  death,  not  exceeding  his  expectancy  of  life,  though  it  would 
seem  that  the  rule  is  not  to  be  applied  with  mathematical  strictness, 
and  that  the  jury  may  properly  take  into  consideration  the  increasing 
wants  of  the  parents  and  the  increasing  ability  of  the  child  to  sup- 
port them." 

McCullougli  V  Chicago  &c  Ry.,  160  Iowa  524; 

146  Pac.  70. 
Richmond  v  Chicago  &c  Ry.,  87  Mich.  374;  49 

N.  W.  621. 
International  &c  Ry.  v  Kindred,  57  Tex.  491. 
Texas  &c  Ry.  v  Lester,  75  Tex.  56;  12  S.  W.  955. 
The  damages  are  to  be  based  upon  the  pecuniary  loss 
sustained  by  the  beneficiary. 

Gulf,  Colorado  &c  Ry.  v  McGinnis,  228  U.  S. 

173. 
Michigan  Central  R.  R.  v  Vreeland,  227  U.  S.  59. 
North  Carolina  R.  R.  v  Zachary,  232  U.  S.  248. 
St.  Louis  &c  Ry.  v  Conarty,  155  S.  W.  93. 
Fogarty  v  Northern  Pac.  Ry.,  147  Pac.  652. 
Act  gives  compensation  for  actual  pecuniary  loss  of 
each  survivor,  not  for  destruction  of  earning  power. 

Chesapeake  &,c  Ry.  v  Dwyer's  Admx.,  163  S.  W. 
752. 


112 


ACTION  FOR  DEATH— PECUNIARY  LOSS 

MEASURE  OF  DAMAGES:  Act  makes  the  measure 
of  damages  the  pecuniary  loss,  not  the  value  of  net  earn- 
ings, based  on  expectancy. 

Henney  v  Seaboard  Air  Line  Ry.,  165  N.  C.  99 ; 
80  S.  E.  1078. 
Measure  of  damages  is  what  will  compensate  surviv- 
ing relatives  for  actual  pecuniary  loss. 

Louisville  &  A^.  R.  R.  v  Johnson's  Admx.,  161 
Ky.  824;171S.  W.  847. 
Measure  of  damages  for  children  is  such  amount  as 
deceased  would  reasonably  be  expected  to  have  contribu- 
ted to  their  support  and  education, 

Kansas  City  &c  Ry.  v  Roe,  150  Pac.  1035. 
"In  some  cases,  the  evidence  has  been  held  sufficient  to  sustain  a 
finding  that  there  was  a  reasonable  expectation  of  pecuniary  benefit, 
although  the  evidence  fell  short  of  showing  that  assistance  was  actual- 
ly furnished." 

McCullougli  V  Chicago  &c  Ry.,  160  Iowa  524; 

146  Pac.  Rep.  70. 
Hopper  V  Denver  &c  Ry.,  155  F.  273 ;  84  C.  C.  A. 
21. 
The  measure  of  damages,  as  determined  by  the  Sup- 
reme Court  of  the  United  States,  should  be  followed. 

St.  Louis  &c  Ry.  v  Hesterly,  228  U.  S.  702 ;  33 
S.  C.  703 ;  57  L.  Ed.  1031 ;  Rev.  98  Ark.  240 ; 
135  S.  W.  874. 
Nashville  &c  Ry.  v  Henry,  158  Ky.  88;  164  S. 

W.  310. 
McAdow  V  Kansas  City  &c  Ry.,  164  S.  W.  188. 
Cincinnati  &c  Ry.  v  Nolan,  161  Ky.  205 ;  170  S. 
W.  650. 
Rule  of  Federal  courts  as  to  measure  of  damages,  con- 
trols those  of  a  state  court. 

Louisville  &c  Ry.  v  Steivart's  Admr.,  163  S.  W. 
755 ;  modifying  156  Ky.  550;  161  S.  W.  557. 
Reasonable  expectation  of  mother  of  pecuniary  bene- 
fit, evidence  held  sufficient  for  jury. 

Moffett  V  Bait,  kc  R.  R.,  220  F.  39. 

113 


ACTION  FOR  DEATH— PECUNIARY  LOSS 

Measure  of  damages  is  pecuniary  loss,  not  depriva- 
tion of  comfort,  society,  support  and  protection. 

Fisher  v  Portland  Ry.,  145  Pac.  277 ;  Rev.  143 
Pac.  992. 
Suffering  and  bereavement  may  not  be  considered  as 
elements  of  compensation. 

McCullough  v  Chicago,  R.  L  &  P.  R.  R.,  142  N. 
W.  67. 
Value  of  services,  prospective  gifts,  etc.,  are  elements 
of  compensation. 

McCullough  v  Chicago,  R.  I.  &  P.  R.  R.,  142  N. 
W.  67. 
Loss  of  comfort,  society  and  protection,  not  included. 

McFarland  v  Oregon  El.  Ry.,  138  Pac.  458. 
Damages  are  limited  to  such  amount  as  results  from 
a  parent  being  deprived  of  a  reasonable  expectancy  of 
pecuniary  benefit. 

Dooley  v  Seaboard  Air  Line  Ry.,  163  N.  C.  454; 
79  S.  E.  970. 
Damages  are  limited  to  loss  actually  sustained  and 
not  by  state  law  fixing  limit  of  $10,000. 

Devine  v  Chicago,  R.  I  &  P.  Ry.,  266  111.  248; 
107  N.  W.  595 ;  Aff.  185  111.  App.  488. 
Amount  may  exceed  limit  of  state  statute. 

"The  Federal  Act  limits  the  right  of  recovery  to  the  pecuniary 
damages  actually  sustained  by  the  next  of  kin  of  deceased,  but  it 
does  not  place  any  arbitrary  limit  on  the  amount  that  may  be  re- 
covered. Plainly  it  would  seem  to  be  the  intention  of  the  Act  that 
recovery  may  be  had  for  the  full  pecuniary  damages  actually  sus- 
tained by  the  next  of  kin. 

Damages  are  not  rcsti-icted  to  amount  yielding  income 
equal  to  wliat  dependents  would  have  received. 

Chesapeake  &c  R.  R.  v  Dwyer's  Admx.,  162  Ry. 
427;172S.  W.  18. 
Measure  of  damages  considered. 

Chesapeake  &  0.  Ry.  v  Kelly's  Admx.,  160  Ky. 
296;  169  S.  W.  736;  Reh.  den.  161  Ky.  655; 
171  S.W.  185. 
Kansas  City  T.  R.  v  Leslie,  167  S.  W.  83. 

114 


ACTION  FOR  DEATH— PECUNIARY  LOSS 

EXPENSES  of  medical  attendance,  a  reasonable  sum 
for  pain  and  suffering  and  a  fair  recompense  for  what 
plaintiff  would  otherwise  have  earned,  allowable. 

Nashville  &c  Ry.  v  Henry,  158  Ky.  88;  164  S. 
W.  310. 
Burial  expenses  and  funeral  charges  are  not  included. 
Collins  V  Penna.  R.  R.,  148  N.  Y.  S.  777 ;  163 
App.  Div.  452. 
Damages  for  decedent's  pain  and  suffering  not  recov- 
erable, where  death  is  instantaneous. 

Moffett  V  Baltimore  &  0.  R.  R.,  220  F.  39;  155 
C.  C.  A.  607. 
INSTRUCTION  to  consider  as  elements  of  damages, 
care,  instruction  and  training  by  one  of  deceased's  dispo- 
sition, which  might  have  been  expected  by  his  wife  and 
children,  held  proper. 

St.  Louis  &c  Ry.  v  Rodgers,  176  S.  W.  696. 
Instruction  to  consider  age,  health,  occupation  and 
earning  capacity  of  deceased  and  allow  such  amount,  less 
personal  expenses,  error. 

Kansas  City  S.  Ry.  v  Leslie,  35  S.  C.  844;  59  L. 
Ed.  — ;  Eev.  167  S.  W.  83;  112  Ark.  305. 
LIFE    INSURANCE;    evidence    of    collecting,    held 
harmless  error. 

Brahham  v  Baltitnore  &c  R.  R.,  220  F.  35. 


115 


ACTION  FOR  DEATH— DAMAGES  FOR  DECEDENTS'  PAIN 

Action  for  Death — Damages  for  decedent's  pain — 

"Such  pain  and  suffering  as  are  substantially  contemporaneous 
with  death  or  mere  incidents  to  it,  as  also  the  short  periods  of  in- 
sensibility which  sometimes  intervene  between  fatal  injuries  and 
death,  afford  no  basis  for  a  separate  estimation  or  award  of  dam- 
ages under  this  statute.  By  the  common  law  the  death  of  a  human 
being,  although  wrongfully  caused,  affords  no  basis  for  a  recovery  of 
damages,  and  a  right  of  action  for  personal  injuries  dies  with  the 
person  injured.  Therefore,  in  cases  like  this,  the  right  of  recovery 
depends  entirely  upon  statute  law.  Here  the  statute  is  not  applicable 
because  superseded  by  this  Act.  *  *  *  This  cause  of  action 
is  independent  of  any  cause  of  action  which  the  decedent  had,  and 
includes  no  damages  which  he  might  have  recovered  for  his  injury 
if  he  had  survived.  It  is  one  beyond  that  which  the  deceased  had — 
one  proceeding  upon  altogether  different  principles.  It  is  a  liability 
for  the  loss  and  damage  sustained  by  relatives  dependent  upon  the 
decedent. 

"It  is,  therefore,  a  liability  for  the  pecuniary  damage  to  them 
and  for  that  only.  The  cause  of  action  which  was  created  in  behalf 
of  the  injured  employe  did  not  survive  his  death,  nor  pass  to  his  rep- 
resentative. But  the  act,  in  case  of  the  death  of  such  an  employe 
from  his  injury,  creates  a  new  and  distinct  right  of  action  for  the 
benefit  of  the  dependent  relatives  named  in  the  statute.  The  dam- 
ages recoverable  are  limited  to  such  loss  as  results  to  them  because 
they  have  been  deprived  of  a  reasonable  expectation  of  pecuniary 
benefits  by  the  wrongful  death  of  the  injured  employe.  The  dam- 
age is  limited  strictly  to  the  financial  loss  thus  sustained.  *  * 
Without  abrogating  or  curtailing  either  of  the  two  distinct  rights  of 
action  under  the  original  Act,  the  new  Section  9  in  the  Amendment  of 
April  5,  1910,  provides  in  exact  words  that  the  right  given  to  the 
injured  person  'shall  survive'  to  his  personal  representative  'for  the 
benefit  of  the  same  relatives  in  whose  behalf  the  other  right  is  given. 
*  *  *  This  provision  means  that  the  right  existing  in  the 
injured  person  at  his  death — a  right  covering  his  loss  and  suffering 
while  he  lived  but  taking  no  account  of  his  premature  death  or  of 
what  he  would  have  earned  or  accomplished  in  the  natural  span  of 
life — shall  survive  to  his  personal  representative  to  the  end  that  it 
may  be  enforced  and  the  proceeds  paid  to  the  relatives  indicated. 
And  when  this  provision  and  §  1  are  read  together  the  conclusion  is 
unavoidable  that  the  personal  representative  is  to  recover  on  behalf 
of  the  designated  beneficiaries,  not  only  such  damages  as  will  com- 
pensate them  for  their  own  pecuniary  loss,  but  also  such  damages  as 
will  be  reasonably  compensatory  for  the  loss  and  suffering  of  the  in- 
jured person  while  he  lived.  *  *  ♦  Qne  claim  begins  where  the 
other  ends,  and  a  recovery  of  both  in  the  same  action  is  not  a  double 
recovery  for  a  single  wrong  but  a  single  recovery  for  a  double  wrong. 

116 


ACTION  FOR  DEATH— DAMAGES  FOR  DECEDENTS'  PAIN 

*  *  *  This  award  of  $5,000  damages  for  pain  and  suffering, 
even  though  extreme,  for  so  short  a  period  as  approximately  thirty 
minutes,  does  seem  large,  but  the  power,  and  with  it  the  duty  and 
responsibility  of  dealing  with  this  matter  rested  upon  the  court  be- 
low. It  involves  only  a  question  of  fact  and  is  not  open  to  reconsid- 
eration here.    Judgment  affirmed." 

St.  Louis,  Iron  Mountain  &  Southern  Ry.  Co.  v 
Craft,  237  U.  S.  648  (June  1, 1915) ;  Aff.  171 
S.  W.  1185.    Approved  in  Kansas  City  S. 
Ry.  V  Leslie,  238  U.  S.  599. 
Conscious  pain  and  suffering,  endured  by  emploj^e  be- 
fore his  death,  as  well  as  pecuniary  loss  to  next  of  kin, 
are  elements  for  which  damages  are  recoverable. 

St.  Louis  &c  Ry.  v  Craft,  237  U.  S.  648;  35  S.  C. 

704;  Aff.  171  S.  W.  1185. 
Kansas  City  S.  Ry.  v  Leslie,  238  U.  S.  599 ;  35  S. 
C.  844;  59  L.  Ed.  — ;  Rev.  112  Ark.  305 ;  167 
S.  W.  83. 
St.  Louis  &c  Ry.  v  Conarty,  155  S.  W.  93. 
Where  death  is  instantaneous,  pecuniary  loss  alone 
may  be  considered. 

Norfolk  kc  Ry.  v  Holbrook,  235  U.  S.  625. 


117 


ACTION  FOR  DEATH— DAMAGES— APPORTIONMENT  OF 

Action  for  Death — Damages — Apportionment  of — 

"This  Act  is  substantially  like  Lord  Campbell's  Act,  except  that 
it  omits  the  requirement  that  the  jury  should  apportion  the  dam- 
ages. That  omission  clearly  indicates  an  intention  on  the  part  of 
Congress  to  change  what  was  the  English  practice  so  as  to  make  the 
Federal  statute  conform  to  what  was  the  rule  in  most  of  the  States 
in  which  it  was  to  operate.  Those  statutes,  when  silent  on  the  sub- 
ject, have  generally  been  construed  not  to  require  juries  to  make  an 
apportionment." 

Central  Vt.  Rij.  Co.  v  White,  238  U.  S.  508. 
Damages  for  pain  and  pecuniary  loss  need  not  be 
separately  specified  in  verdict. 

"The  language  of  the  statute  does  not  expressly  require  the  jury 
to  report  what  was  assessed  by  them  on  account  of  each  distinct  lia- 
bility, and  in  view  of  the  prevailing  contrary  practice  in  similar  pro- 
ceedings we  cannot  say  that  a  provision  to  that  effect  is  necessarily 
implied." 

Kansas  City  Southern  Ry.  v  Leslie,  238  U.  S. 
599;  Eev.  112  Ark.  305  (1915). 
Verdict  need  not  apportion  damages  for  pain  and  suf- 
fering and  those  for  pecuniary  loss. 

St.  Louis  &c  Ry.  v  Rodgers,  176  S.  W.  696. 
St.  Louis  &c  Ry.  v  Craft,  237  U.  S.  648 ;  35  S.  Ct. 
704. 
Verdict  failing  to  specify  amount  for  decedent's  suf- 
fering and  that  for  pecuniary  loss,  is  not  reversible  error, 
when  in  accord  with  local  practice. 

Ka7isas  City  &c  Ry.  v  Leslie,  238  U.  S.  599 ;  35 
S.  Ct.  844;  Rev.  112  Ark.  305;  167  S.  W.  83. 
Verdict  should  show  sum  allowed  each  beneficiary. 
Hardwicks  v  Wabash  R.  R.,  181  Mo.  App.  156; 
168  S.  AV.  328. 
A  general  verdict  may  be  returned  for  plaintiff  for 
benefit  of  widow  and  minor  children,  without  apportion- 
ment to  each. 

Central  Vermont  Ry.  v  White,  238  U.  S.  508; 
S.  Ct.  865;  Aff.  87  Vt.  330;  89  A.  616. 
Verdict  should  apportion  amounts  according  to  indi- 
vidual loss  of  each  beneficiary. 

Collins  V  J'enna.  R.  R.,  148  N.  Y.  S.  777;  163 
App.  Div.  452. 

118 


ACTION  FOR  DEATH— ALLEGATIONS  NECESSARY 

Action  for  Death — Allegations  necessary — 

"The  existence  of  a  beneficiary  within  the  description  of  the 
statute,  is  a  necessary  prerequisite — an  issuable  fact — and  therefore 
must  be  alleged  and  proved." 

Melzner  v  Northern  Pac.  Ry.,  46  Mont.  277 ;  127 
Pac.  1002. 
Complaint  failing  to  allege  that  decedent  left  wife  or 
child,  defective. 

Farley  v  New  York  &c  Ry.,  87  Conn.  328:  87  A. 
990. 
Count  for  benefit  of  mother  must  allege  that  dece- 
dent left  no  widow  or  children. 

Moffett  V  Baltimore  &c  Ry.,  220  Fed.  39;  135 
C.  C.  A.  607. 
Complaint  must  allege  that  beneficiaries  named  are 
alive  and  name  survivors. 

Illinois  Central  Ry.  v  Porter,  207  F.  311 ;  125  C. 
C.  A.  55. 
Declaration  alleging  that  suit  was  brought  for  benefit 
of  'Svidow  and  next  of  kin,"  not  fatally  defective  for  not 
alleging  for  benefit  of  ' '  surviving  widow  and  children. ' ' 
Flale  V  Vandalia  R.  R.,  169  111.  App.  12. 
Capacity  to  sue  must  be  shown. 

Martin  v  Butte  Ry.,  34  Mont.  281 ;  86  Pac.  264. 


119 


ACTION  FOR  DEATH— ALLEGATIONS  NECESSARY 

Pecuniary  Loss: 

"The  plaintiff's  declaration  contains  no  positive  averment  of 
pecuniary  loss  to  the  parents  for  whose  benefit  the  suit  was  insti- 
tuted. Nor  does  it  set  out  facts  and  circumstances  adequate  to  ap- 
prise the  defendant  with  reasonable  particularity  that  such  loss  in 
fact  was  suffered.  Common  experience  teaches  that  financial  damage 
to  a  parent  by  no  means  follows  as  a  necessary  consequence  upon  the 
death  of  an  adult  son.  The  plaintiff  expressly  declined  in  both  courts 
below  so  to  amend  his  declaration  as  to  allege  pecuniai'y  loss  to  the 
parents  and  judgment  properly  went  against  him.  We  do  not  think 
remanding  the  case  upon  such  amendment  now  would  be  proper." 
Garrett  v  Louisville  &  A^.  R.  K,  235  U.  S.  308. 
Pecuniary  loss  must  be  averred. 

McCullough  v  Chicago  &c  Ry.,  142  N.  W.  Kep. 
67. 
Actual  deprivation  of  pecuniary  benefit  must  be  al- 
leged. 

Illinois  Central  Ry.  v  DoJierty,  153  Ky.  363;  155 
S.  W.  1119. 
Declaration  failing  to  show  facts,  apprising  defendant 
of  actual  pecuniary  loss  suffered,  fatally  defective. 

Garrett  v  Louisville  &c  Ry.,  235  U.  S.  308 ;  35  S. 
Ct.  32;  Aff.  117  C.  C.  A.  109;  197  F.  715. 
Counts  to  recover  damages  for  suffering  of  decedent 
and  for  pecuniary  loss,  seek  to  enforce  distinct  liabilities. 
Louisville  &c  Ry.  v  Fleming,  69  So.  Rep.  125. 


120 


FORMS 

I. 

Declaration  for  death  of  switchman  for  benefit  of  widow. 

State  of  

County  of 

In  the Court  of County. 

1.  ,  plaintiff,  Administrator  of  the  estate 

of ,  deceased,  duly  appointed  by  the 

Court  of County,  in  the  State  of ■ — , 

as  such  Administrator,  and  as  the  personal  representa- 
tive of and ,  the  surviving  widow 

and  only  surviving  child  of  said  deceased,  by , 

his  attorney,  complains  of ,  a  corporation,  de- 
fendant, in  a  plea  of  trespass  on  the  case,  under  the  Sta- 
tute enacted  by  Congress  on  the  22nd  day  of  April,  1908, 
entitled  ''An  Act  relating  to  the  liabilit}^  of  common  car- 
riers by  rail  to  their  employes  in  certain  cases,"  and  the 
Act  of  Amendment  thereof  of  the  5th  day  of  April,  1910, 
and  alleges : 

2.  That,  in  the  lifetime  of  plaintiff's  said  intestate, 

prior  to  and  on  to-mt,  the day  of ,  the  said 

defendant  owned,  possessed  and  operated  a  certain  rail- 
road extending,  among  other  places  from  the  City  of 

in  the  County  of in  the  State  of 

,  into  and  through  a  part  of  another  state,  to- 

wit,  ,  and  other  states,  and  it  was  then  and 

there  a  common  carrier  by  railroad  and  as  such  was 
then  and  there  engaged  upon,  by  and  in  connection  with 
its  said  railroad,  in  commerce  as  a  carrier  of  passengers 
and  freight  between  the  several  states. 

3.  That  said ,  deceased,  was  then  and  there 

and  at  the  time  of  his  injuries  and  death,  hereinafter 
complained  of,  employed  by  said  defendant,  as  such  com- 
mon carrier  by  rail,  engaged  in  commerce  between  the 
several  states,  as  a  switchman  to  work  and  switch  with  a 

121 


FORMS 

certain  engine  and  certain  cars  which  said  defendant  was 
then  operating  upon  its  said  railroad  in  its  said  busi- 
ness. 

4.  That  on,  to-wit,  the  said day  of , 

at,  to-wit,  in  the  vicinity  of th  and th  streets, 

in  the  Cit}^  of ,  in  the  County  and  State  afore- 
said, defendant  was  operating  its  certain  switching  train 
aforesaid,  being  drawn  by  its  said  locomotive  upon  and 
along  one  of  the  tracks  of  its  said  sailroad;  and  the  said 
deceased,  in  the  discharge  of  his  duty  as  such  switchman, 
was  then  and  there  standing  on  top  of  one  of  the  cars  of 
said  train,  and  while  the  deceased  was  so  standing  upon 
said  car,  and  while  he  was  exercising  ordinary  care  and 
caution  for  his  own  safety,  the  defendant's  engineer,  who 
was  then  and  there  in  charge  of  the  operation  and  man- 
agement of  said  engine,  then  and  there  wrongfully  and 
negligently  caused  said  train  to  be  stopped  with  great  and 
unusual  suddenness,  force  and  violence ;  and  as  a  direct 
result,  and  in  consequence  of  said  manner  in  wMch  said 
train  was  so  stopped,  the  deceased  was  thereby  then  and 
there  and  thereby  thrown  from  said  car  of  said  train,  up- 
on which  he  was  riding  as  aforesaid,  to  and  upon  the 
track  there,  and  he  thereby  then  and  there  sustained  such 
serious  bodily  injuries  that  he  died  as  a  result  thereof 
within  a  short  time,  to-wit,  within  an  hour  after  said  ac- 
cident, in  the  county  and  state  aforesaid,  during  which 
period  he  suffered  intense  and  excruciating  pain,  suffer- 
ing and  agony;  that  said  injuries  occurred  while  said  de- 
ceased was  performing  bis  duties  in  the  employment  of 
said  defendant  as  aforesaid  in  connection  with  its  said 
business  as  a  common  carrier  by  railroad  between  the 
several  states. 

5.     That  the  deceased,  said  plaintiff's  intestate,  left 

him  surviving  his  widow, ,  and  his  only  child, 

a  minor  son,  ,  who  are  still  living;  that  the 

said  deceased,  at  the  time  of  his  death  was  of  the  age  of 

122 


FORMS 

years  and  that  his  earning  capacity  was 

dollars  per  month ;  that  said  deceased  was  the  sole  sup- 
port of  his  said  surviving  widow  and  son  and  regularly 
contributed  for  their  entire  support;  that  said  deceased 
would  probably  have  contributed  during  his  life  exj)ect- 
ancy  the  sum  of dollars  per  month  for  their  sup- 
port ;  and  that  by  reason  of  the  foregoing  the  said  widow 
and  minor  son  of  said  deceased  have  been  deprived  of  the 
protection,  advice  and  aid  of  said  deceased,  and  other- 
wise suffered  great  pecuniary  loss. 

6.  To  the  damage  of  the  plaintiff  as  such  administra- 
tor and  the  personal  representative  of  said  widow  and 
minor  son  of  said  deceased  and  for  their  benefit,  and  on 
behalf  of  said  decedent,  for  his  cause  of  action  herein,  in 
the  sum  of dollars. 


Attorney  for  Plaintiff. 
(See  Devine  v  Chicago  &c  Ry.,  185  111.  App.  488.) 


123 


FORMS 


Allegation  for  death  from  defective  track  for  sister. 

That  heretofore,  to-wit,  on  the  — • —  day  of 

in  the  County  of  and  State  of 


plaintiff's  intestate  was  a  locomotive  fireman  in  the  em- 
ploy of  the  defendant  and  was  performing  his  duties  as 
such  on  a  certain  passenger  train,  engaged  by  said 
defendant  as  a  common  carrier  in  interstate  com- 
merce,   and  •  running    from    the    City    of    in 

the  State  of • ,  to  the  City  of in  the 

State  of ;  that  it  was  the  duty  of  the  defend- 
ant to  exercise  reasonable  care  to  provide  a  reasonably 
safe  track  on  which  to  operate  said  train ;  that  in  disre- 
gard of  said  duty  the  defendant  negligently  furnished 
and  maintained  a  defective  track  with  insufficient  rail 
and  rails  not  properly  spiked  to  the  ties,  and  decayed 
and  rotten  ties,  which  defects  defendant  knew  or  in  the 
exercise  of  reasonable  care  would  have  known;  that  by 
reason  of  said  defects  the  locomotive  of  defendant's  said 
moving  train  was  then  and  there  thrown  from  the  said 
track,  and  the  plaintiff's  intestate  was  thereby  and  as  a 
direct  result  of  said  defects  and  said  negligence,  and 
while  he  was  in  the  exercise  of  reasonable  care  and  while 
in  the  performance  of  his  duties  as  aforesaid,  wdth  great 
force  and  violence,  thrown  upon  the  ground  and  among 
the  debris  there  and  instanth^  killed. 

That  said  deceased  was  a  single  man, years  of 

age,  with  an  earning  capacity  and  average  earnings  of 

dollars  per  month ;  that  he  left  him  surviving  no 

widow  or  children,  nor  any  parent,  but  a  sister,  named 

,  who  is  his  sister  and  still  living  and  his  only 

surviving  next  of  kin ;  that  the  deceased  was  in  the  habit 
of  contributing  to  the  support  and  for  the  pecuniary  as- 
sistance of  his  snid  sister  the  sum  of dollars 

per  month,  and  that  he  probably  would  have  contributed 
or  given  to  his  said  sister  the  total  sum  of dol- 
lars, in  wliiich  amount  the  said has  suffered 

yx'cnriiary  loss  by  the  premises  aforesaid,  etc. 

(Sec  Lee  v  Toledo  &c  Ry.,  190  111.  App.  383.) 

124 


FORMS 

Allegation  for  Excessive  Speed 

Plaintiff  further  avers  that  on,  to-wit,  the day 

of ,  in  the  County  of and  State  of 

,  defendant  was  engaged  as  such  common  car- 
rier by  railroad  in  commerce  between  the  several  states, 
and  plaintiff  was  then  and  there  employed  by  defendant 
in  such  interstate  commerce  and  engaged  therein  as  a 

;  that  in  the  performance  of  his  said  duties  it 

was  plaintiff ^s  duty  to  get  upon  the  front  end  of  a  cer- 
tain train,  then  and  there  operated  by  said  defendant 
in  such  interstate  commerce  when  it  reached  him,  and 
it  was  then  and  there  the  duty  of  defendant's  en- 
gineer thereon  to  run  at  so  slow  speed  that  plaintiff 
might  get  safely  upon  the  same;  that  the  said  engineer 
then  and  there  violated  his  said  duty  and  negligently  ran 
at  a  high  and  dangerous  rate  of  speed  and  not  at  a  mod- 
erate and  safe  speed,  as  he  should  have  done,  which  de- 
fendant, through  its  said  servant,  the  said  engineer,  then 
knew,  and  plaintiff  did  not  know;  and  that  while  plain- 
tiff in  the  exercise  of  due  care  and  caution  for  his  own 
safety  was  attempting  to  get  on  said  train,  he  was  by 
reason  of  defendant's  aforesaid  negligence,  suddenly 
jerked  and  thrown  under  the  train  and  upon  the  ground 
there  and  his  right  lower  limb  was  severed  from  his 
body  and  he  suffered  great  }3ain  and  agony,  etc. 
See 

Mattocks  V  Chicago  &c  Ry.,  187  111.  App.  529. 

St.  Louis  V  Hesterly  (Ark.)  135  S.  W.  874. 


m 


FORMS 

Declaration  for  Violation  of  Safety  Appliance  Act. 

STATE  OF . 

COUNTY  OF 


IN  THE COURT  OF COUNTY 

,  plaintiff,  by  ,  his  attorney, 

complains  of ,  a  corporation,  defendant,  of  a 

plea  of  trespass  on  the  case. 

In  that  whereas,  plaintiff  alleges,  that  prior  to  and 

on,  to  wit,  ,  the  defendant  o^vned,  possessed 

and  operated  a  certain  railroad  in  the  county  and  state 
aforesaid  and  it  was  then  and  there  a  common  carrier  by 
railroad  and  as  such  was  then  and  there  engaged  upon,  by 
and  in  connection  with  its  said  railroad,  in  interstate 
commerce  and  traffic ; 

And  plaintiff  was  then  and  there  and  at  the  time  of  the 
injuries  hereinafter  complained  of,  employed  by  the  de- 
fendant in  such  commerce  on  said  interstate  highway 
railroad  as  a  switchman  to  work  and  switch  with  certain 
of  defendant's  engines  and  cars,  which  defendant  was 
then  and  there  o^jerating  upon  its  said  railroad  in  such 
interstate  commerce,  and  as  such  switchman  earning,  to 
wit, dollars  per  month; 

And  the  plaintiff  further  alleges  that  at  the  time  and 
place  aforesaid,  to  wit,  at  the  defendant's  railway  yards 

at  or  near,  to  wit, Streets,  in  the  City  of 

in  the  county  and  state  aforesaid,  and  which 


yards  it  operated  in  connection  with  and  as  part  of  its 
said  railroad  and  its  said  business  as  a  common  car- 
rier by  railroad  for  interstate  traffic,  the  defendant  un- 
lawfully and  negligently,  and  contrary  to  the  certain  Acts 
of  Congress  in  such  case  made  and  provided,  hauled  and 
permitted  to  be  hauled  and  used  upon  its  said  railroad  in 
moving  such  interstate  traffic,  a  certain  car  equipped 
with  a  certain  coupler,  whicli  coupler  by  reason  of  its 
defective  and  inoperative  condition  was  not  constructed 
nor  maintained  according  to  the  provisions  and  require- 
ments of  the  Acts  of  Congress  in  such  case  made  and  pro- 
vided in  that ; 

120 


FORMS 

And  the  plaintiff  further  alleges  that  he,  as  such 
switchman,  was  then  and  there  required  by  the  defend- 
ant in  the  performance  of  his  duties  as  aforesaid  in  con- 
nection with  the  said  business  of  said  defendant  of  oper- 
ating a  railroad  for  interstate  commerce  traffic,  to  and  did 
*  *  and  that  while  in  the  discharge  of  his  said  duties 
on  said  car,  which  was  then  and  there  being  moved  en 

route  from  the  City  of in  the  county  and  state 

aforesaid,  to  the  City  of ,  in  the  State  of 

,  and  while  he  was  in  all  respects  exercising  ordinary 


care  for  his  own  safety,  he  was,  as  a  direct  result  and  in 
consequence  of  said  defective,  inoperative  and  unlawful 
condition  of  said  coupler,  and  in  consequence  of  his  being 

so  required  to and  the  performance  thereof, 

caught  by  his  right  arm  between  said  cars  and  the  same 
was  crushed  between  the  said  couplers,  and  divers  of 
the  bones,  ligaments,  muscles,  tendons  and  membranes  of 
his  said  arm  were  thereby  then  and  there  sprained,  dislo- 
cated, broken  and  otherwise  injured,  and  plaintiff  was 
cut,  bruised  and  wounded  in  his  head,  face,  limbs  and 
body,  and  he  sustained  serious  injuries  to  divers  of  his 
internal  organs  and  serious  shocks  and  injuries  to  his 
spine,  nervous  system  and  brain;  and  plaintiff  alleges 
that  as  a  result  of  his  said  injuries  he  has  ever  since  suf- 
fered and  will  continue  permanently  to  suffer  great  pain, 
and  his  said  arm  has  become  and  is  permanently  disfigur- 
ed and  crippled,  and  its  use  has  become  and  is  greatly  and 
permanently  impaired,  and  that  as  a  direct  result  of  his 
said  injuries  plaintiff  has  become  and  is  permanently  in- 
capacitated from  attending  to  and  transacting  his  regu- 
lar work  and  business  or  any  ordinary  w^ork,  or  business 
or  affairs,  and  he  has  thereby  been  and  will  continue 
permanently  to  be  deprived  of  large  earnings,  which 
he  might  and  otherwise  would  have  made  and  acquired, 
and  he  has  been  compelled  to  and  did  incur  expenses  and 
lay  out,  and  will  continue  to  be  required  to  incur  expenses 

127 


FORMS 

and  lay  out  for  medical  attention,  nursing,  medicines  and 
otherwise,  divers  large  amounts  of  money,  amounting  to, 
to  wit,  the  sum  of dollars  in  and  about  en- 
deavoring to  be  cured  of  his  said  injuries,  sickness  and 
disorders  occasioned  as  aforesaid. 

To  the  damage  of  the  plaintiff  in  the  sum  of 

dollars,  wherefore  he  brings  his  suit. 


Attorney  for  Plaintiff. 


128 


FORMS 

Allegations  for  Death  of  Yard  Clerk. 

That  on,  to  wit, in  the  County  of < — 

and  State  of ,  the  defendant  owned  and  operated 

a  double  track  steam  railroad,  extending  through  the 

said  State  of into  the  State  of and 

other  states,  and  running  through  the  City  of  ■ , 

in  said  County,  wherein  it  maintained  and  operated  in 
connection  with  its  said  railroad  many  side  tracks  and 
switches  in  what  was  called  its  yards; 

That  plaintiff's  decedent  was  then  and  there  employ- 
ed by  the  defendant  in  the  capacity  of  yard  master  and 
yard  clerk,  and  that  his  duties,  among  other  things,  re- 
quired him  to  direct  the  setting  and  movement  of  freight 
cars  and  to  keep  a  record  of  cars  shipped  to  and  from  the 

said  City  of  ;  that  in  the  performance  of  his 

said  duties  decedent  was  required  by  said  defendant  daily 
to  visit  the  said  yards  and  be  upon  and  near  the  tracks 
aforesaid  and  personally  inspect  the  cars  thereon  and 
make  a  record  thereof ;  that  while  engaged  in  such  yards 
at  the  time  and  place  aforesaid,  to  wit,  at  or  near  the  in- 
tersection of Streets  in  said  City  of , 

and  while  so  performing  his  duties  as  he  was  required  by 
his  said  employment  to  do  in  taking  the  numbers  of  certain 
cars  and  making  records  thereof,  which  cars  had  then  and 

there  arrived  in  said  City  of in  said  State,  from 

the  City  of in  the  State  of ,  and  which 

were  then  and  there  loaded  with  interstate  freight,  and 
while  decedent  was  using  ordinarj'-  care  for  his  o\\ti  safe- 
ty, the  said  defendant  did  then  and  there,  by  its  certain 
locomotive  engineer,  negligently  and  wrongfully  drive 
and  permit  to  be  driven  a  certain  engine,  with  its  tender 
in  front,  over  the  track  whereon  decedent  was  standing, 
as  it  was  his  duty  to  do,  on  one  of  said  defendant 's  tracks, 
at  an  unusual,  excessive  and  dangerous  rate  of  speed,  to 

wit,  at  the  rate  of miles  an  hour,  and  as  a  direct 

result  and  in  consequence  of  said  negligence  of  said  de- 

129 


FORMS 

fendant  and  its  said  engineer,  decedent  was  then  and 
thereby  run  over  and  killed  instantaneously. 

And  plaintiff  alleges  that  the  said  engineer  could  by 
keeping  a  lookout,  as  it  was  his  duty  to  do,  have  perceived 
that  said  decedent  was  then  and  there  standing  upon  said 
track  and  by  using  care,  as  it  was  his  duty  to  do,  avoid 
said  accadent,  and  that  said  engineer  negligently,  just  be- 
fore driving  said  engine  over  said  decedent,  failed  to 
sound  the  whistle  or  ring  the  bell  of  said  engine  or  give 
to  decedent  any  warning  of  said  approach,  as  it  was  his 
duty  to  do,  and  plaintiff  further  alleges  that  said  engin- 
eer negligently  failed  to  watch  said  track  and  use  due 
care  to  avoid  injury  to  plaintiff,  w^hereby  said  engineer 
could  have  perceived  decedent  and  been  able  to  stop  said 
engine  in  time  to  avoid  said  injuiy,  etc. 

See  Pittshurgh  &c  Ry.  Co.  v  Farmers  &c  Trust  Co., 
108  N.  E.  108. 


130 


FORMS 

General  and  Special  Demurrer. 


STATE  OF  - 
COUNTY  OF 


IN  THE COURT 

—  Plaintiff  Case, 

vs.  General  Number 

—  Defendant  Term  number  — 


And  the  defendant, by ,  its  attorney 

comes  and  defends  the  wrong  and  injury  when  etc.,  and 
says  that  the  declaration  of  the  plaintiff  and  each  and 
every  count  thereof  and  charge  therein  and  the  matters 
tlierein  contained,  are  not  sufficient  in  law  for  the  plain- 
tiff to  have  or  maintain  his  aforesaid  action  against  it, 
the  said  defendant,  and  that  the  defendant  is  not  bound 
by  law  to  answer  the  same,  and  this  the  defendant  is 
ready  to  verify. 

And  the  defendant  states  and  shows  to  the  Court  the 
follomng  causes  of  special  demurrer  to  the  said  declara- 
tion and  each  count  thereof,  that  is  to  say:  etc. 


Attorney  for  Defendant, 

Plea  of  General  Issue. 

And  now  comes  the  defendant, ,  by , 

its  attorney,  and  denies  the  wrong  and  injury  when  etc., 
and  says  that  it  is  not  guilty  of  the  said  grievances  in 
the  manner  and  form  as  plaintiff  has  above  thereof  com- 
plained against  it  in  his  said  declaration  and  each  and 
all  counts  thereof  and  of  this  it  puts  itself  upon  the  coun- 
try. 


Attorney  for  Defendant. 


131 


SAFETY  ACTS 

(In  relation  to  the  Federal  Employers'  Liability  Act) 

(Act  March  2,  1893,  c.  196,  §  1.  27  Stat.  531.  Comp. 
Stat.  vol.  4,  §  8605.)  Driving  wheel  brakes  and  appli- 
ances for  train-brake  system. 

From  and  after  the  first  day  of  January,  eighteen 
hundred  and  ninety-eight,  it  shall  be  unlawful  for  any 
common  carrier  engaged  in  interstate  commerce  by  rail- 
road to  use  on  its  line  any  locomotive  engine  in  moving 
interstate  traffic  not  equipped  with  a  power  driving  wheel 
brake  and  appliances  for  operating  the  train-brake  sys- 
tem, or  to  run  any  train  in  such  traffic  after  said  date  that 
has  not  a  sufficient  number  of  cars  in  it  so  equipped  with 
power  or  train  brakes  that  the  engineer  on  the  locomo- 
tive dramng  such  train  can  control  its  speed  without  re- 
quiring brakemen  to  use  the  common  hand  brake  for  that 
purpose. 

(Act  1893,  c.  196,  §  2.)  Automatic  couplers. 

On  and  after  the  first  day  of  January,  eighteen  hund- 
red and  ninety-eight  it  shall  be  unlawful  for  any  such 
common  carrier  to  haul  or  permit  to  be  hauled  or  used  on 
its  line  any  car  used  in  moving  interstate  traffic  not  equip- 
ped with  couplers  coupling  automatically  by  impact  and 
which  can  be  uncoupled  without  the  necessity  of  men  go- 
ing between  the  end  of  the  cars.     (27  Stat.  531.) 


132 


SAFETY  ACTS 

(Act  1893,  c.  196,  §  3.)  Cars  not  so  equipped  may  be 
refused  by  roads. 

When  any  person,  firm,  company  or  corporation  en- 
gaged in  interstate  commerce  by  railroad  shall  have 
equipped  a  sufficient  number  of  its  cars  so  as  to  comply 
with  the  provisions  of  Section  one  of  this  act,  it  may  law- 
fully refuse  to  receive  from  connecting  lines  of  road  or 
shippers  any  cars  not  equij)ped  sufficiently  in  accordance 
with  the  first  section  of  this  Act,  wdth  such  power  or  train 
brakes  as  will  work  and  readily  interchange  with  the 
brakes  in  use  on  its  own  cars,  as  required  by  this  Act. 
(27  Stat.  531.) 

(Act  1893,  c.  196,  §  4.)  Grab  irons. 

From  and  after  the  first  day  of  July,  eighteen  hund- 
red and  ninety-five,  until  otherwise  ordered  by  the  in- 
terstate conmierce  commission,  it  shall  be  unlawful  for 
any  railroad  company  to  use  any  car  in  interstate  com- 
merce that  is  not  provided  mth  secure  grab  irons  or 
handholds  in  the  ends  and  sides  of  each  car  for  greater 
security  to  men  in  coupling  and  uncoupling  cars.  (27 
Stat.  531.) 

(Act  1893,  c.  196,  §  5.)  Determination  of  standard 
height  of  drawbars  for  freight  cars. 

Notice  of  standard  by  interstate  commerce  commis- 
sion. Cars  not  complying  prohibited.  Logging  cars  ex- 
cepted.     *      *      *      (27  Stat.  532;  29  Stat.  85.) 

(Act  1893,  c.  196,  §  7.)  Commission  may  extend  time 
for  compliance  with  Act.      *       *     *      (27  Stat.  532.) 


133 


SAFETY  ACTS 

(Act  1893,  c.  196,  §  8.)  Employe  injured  not  assuming 
risk  from  violation  of  Act. 

Any  employe  of  any  such  common  carrier  who  may  be 
injured  by  any  locomotive,  car,  or  train  in  use  contrary 
to  the  provisions  of  this  Act,  shall  not  be  deemed  thereby 
to  have  assumed  the  risk  thereby  occasioned  (although 
continuing  in  the  emplo^anent  of  such  carrier  after  the 
unlawful  use  of  such  locomotive,  car  or  train  had  been 
brought  to  his  knowledge.     (27  Stat.  532.) 

(Act  March  2,  1903,  c.  976,  §  1.)  Provisions  of  Act  re- 
quiring automatic  couplers,  continuous  brakes,  driving 
wheel  brakes,  grab  irons  and  height  of  drawbars  extend- 
ed.     *      *      *      (32  Stat.  943.) 

(Act  1903,  c.  976,  §  2.)  Fifty  percentum  of  cars  mini- 
mum to  be  operated  by  train  engineer's  brakes.  Inter- 
state commerce  commission  to  fix  requirements.  ..*..*..* 
*      (32  Stat.  943.) 

(Act  April  14,  1910,  c.  160,  §  2.)  Hand  brakes,  sill 
steps,  etc. 

On  and  after  July  first,  1911,  it  shall  be  unlawful  for 
any  common  carrier  subject  to  the  provisions  of  this  Act, 
to  haul  or  permit  to  be  hauled  or  used  on  its  line  any  car 
subject  to  the  provisions  of  this  Act,  not  equipped  \\dth 
appliances  provided  for  in  this  Act,  to  wit:  All  cars 
must  be  equipped  with  secure  sill  steps  and  efficient  hand 
brakes ;  all  cars  requiring  secure  ladders  and  secure  run- 
ning boards  shall  be  equipped  with  such  ladders  and  run- 
ning boards,  and  all  cars  having  ladders  shall  also  be 
equipped  with  secure  handholds,  or  grab  irons,  on  their 
roofs  at  the  tops  of  such  ladders :  Provided,  that  in  the 
loading  and  liauling  of  long  commodities,  requiring  more 
than  one  car,  the  hand  brakes  may  be  omitted  on  all  save 
one  of  the  cars  while  they  are  thus  combined  for  such 
purpose.     (36  Stat.  298.) 


134 


SAFETY  ACTS 

(Act  April  14,  1910,  c.  160,  §  4.)  Penalty  and  Uability 
for  defective  equipment;  hauling  for  repairs,  injury  to 
employes. 

Any  common  carrier  subject  to  this  Act  using,  haul- 
ing or  permitting  to  be  used  or  hauled  on  its  line  any  car 
subject  to  the  requirements  of  this  Act  not  equipped  as 
provided  in  this  Act,  shall  be  liable  to  a  penalty  of  one 
hundred  dollars  for  each  and  every  such  violation  to  be 
recovered  as  provided  in  Section  Six  of  the  Act  of  March 
2,  1893,  as  amended  April  1,  1896.  Provided,  that  where 
any  car  shall  have  been  properly  equipped  as  provided 
in  this  Act  and  the  other  Acts  mentioned  herein,  and  such 
equipment  shall  have  become  defective  or  insecure  while 
such  car  was  being  used  by  such  carrier  upon  its  line  of 
railroad,  such  car  may  be  hauled  from  the  place  where 
such  equipment  was  first  discovered  to  be  defective  or 
insecure,  to  the  nearest  available  point  where  such  car 
can  be  repaired,  without  liability  for  the  penalties  im- 
posed by  Section  4  of  this  Act  or  Section  6  of  the  Act  of 
March  2,  1893,  as  amended  by  the  Act  of  April  1,  1896, 
if  such  movement  is  necessary  to  make  such  repairs  and 
such  repairs  cannot  be  made  except  at  such  repair  point ; 
and  such  movement  or  hauling  of  such  car  shall  be  at 
the  sole  risk  of  the  carrier,  and  nothing  in  this  section 
shall  be  construed  to  relieve  such  carrier  from  liability  in 
any  remedial  action  for  the  death  or  injury  of  any  rail- 
road employe  caused  to  such  employe  by  reason  of  or  in 
connection  with  the  movement  or  hauling  of  such  car  with 
equipment  which  is  defective  or  insecure  or  which  is  not 
maintained  in  accordance  with  the  requirements  of  this 
Act  and  the  other  Acts  herein  referred  to;  and  nothing 
in  this  proviso  shall  be  construed  to  permit  the  hauling 
of  defective  cars  by  means  of  chains  instead  of  draw^- 
bars,  in  revenue  trains  or  in  association  with  other  cars 
that  are  commercially  used,  unless  such  defective  cars 
contain  live  stock  or  ''perishable"  freight.  (36  Stat. 
299.) 

135 


SAFETY  ACTS 

(Act  May  30, 1908,  c.  225,  §  1.)    Safety  ash  pan. 

On  and  after  the  1st  day  of  January,  1910,  it  shall  be 
unlawful  for  any  common  carrier  engaged  in  interstate 
or  foreign  commerce  by  railroad  to  use  any  locomotive  in 
moving  interstate  or  foreign  traffic  not  equipped  with  an 
ash  pan,  which  can  be  dumped  or  emptied  and  cleaned 
without  the  necessity  of  any  employe  going  under  such 
locomotive.    (35  Stat.  476.) 

(Act  Feb.  17,  1911,  c.  103,  §  1.)  "Common  carriers," 
* 'railroads,"  and  "employes"  defined. 

The  provisions  of  this  Act  shall  apply  to  any  common 
carrier  or  carriers,  their  officers,  agents  and  employes, 
engaged  in  the  transportation  of  passengers  or  property 
by  railroad  in  the  District  of  Columbia,  or  in  any  Terri- 
tory of  the  United  States,  or  from  one  state  or  Territory 
of  the  United  States  or  the  District  of  Columbia  to  any 
other  state  or  Territory  of  the  United  States  or  the  Dist- 
rict of  Columbia,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the 
United  States  through  a  foreign  country  to  any  other 
place  in  the  United  States.  The  term  ' '  railroad ' '  as  used 
in  this  Act  shall  include  all  the  roads  dn  use  by  any  com- 
mon carrier  operating  a  railroad,  whether  ovtmed  or  op- 
erated under  a  contract,  agreement,  or  lease,  and  the 
term  "employes"  as  used  in  this  Act  shall  be  held  to 
mean  persons  actually  engaged  in  or  connected  with  the 
movement  of  any  train.     (36  Stat.  913.) 


136 


SAFETY  ACTS 

(Act  February  17,  1911,  c.  103,  §  2.)  Safe  locomotive 
boiler  and  appurtenances. 

From  and  after  the  1st  day  of  July,  1911,  it  shall  be 
unlawful  for  any  common  carrier,  its  officers,  or  agents, 
subject  to  this  Act,  to  use  any  locomotive  engine  pro- 
pelled by  steam  power  in  moving  interstate  or  foreign 
traffic  unless  the  boiler  of  said  locomotive  and  appurte- 
nances thereof  are  in  proper  condition  and  safe  to  op- 
erate in  the  service  to  which  the  same  is  put,  that  the 
same  may  be  employed  in  the  active  service  of  such  car- 
rier in  moving  traffic  without  necessary  pei-il  to  life  or 
limb,  and  all  boilers  shall  be  inspected  from  time  to  time 
in  accordance  with  the  provisions  of  this  Act  and  be  able 
to  withstand  such  test  or  tests  as  may  be  prescribed  in 
the  rules  and  regulations  hereinafter  provided  for.  (36 
Stat.  913.) 


137 


SAFETY  ACTS 

"An  Act  to  promote  the  safety  of  employes  and  travel- 
ers upon  railroads  hy  limiting  the  hours  of  service  of 
employes  thereon." 
(Act  March  4, 1907,  c.  2939,  §  2)  Hours  of  service  lim- 
ited. 

It  shall  be  unlawful  for  any  common  carrier,  its  offic- 
ers or  agents,  subject  to  this  Act,  to  require  or  permit  any 
employe  subject  to  this  Act  to  be  or  remain  on  duty  for 
a  longer  period  than  sixteen  consecutive  hours,  and 
wherever  any  such  employe  of  such  common  carrier 
shall  have  been  continuously  on  duty  for  sixteen  hours 
he  shall  be  relieved  and  not  be  required  or  permitted 
again  to  go  on  duty  until  he  has  had  at  least  ten  consecu- 
tive hours  off  duty;  and  no  such  employe  who  has  been 
on  duty  sixteen  hours  in  the  aggregate  in  any  twenty- 
four-hour  period  shall  be  required  or  permitted  to  con- 
tinue or  again  go  on  duty  without  having  had  at  least 
eight  consecutive  hours  off  duty.  Provided,  that  no  op- 
erator, train  dispatcher,  or  other  employe  who,  by  the 
use  of  telegraph  or  telephone  dispatches,  reports,  trans- 
mits, receives,  or  delivers  orders  pertaining  to  or  af- 
fecting train  movements  shall  be  required  or  permitted 
to  be  or  remain  on  duty  for  a  longer  period  than  nine 
hours  in  any  twenty-four  hour  period  in  all  towns,  of- 
fices, places  and  stations  continuously  operated  night  and 
day,  nor  for  a  longer  period  than  thirteen  hours  in  all 
towns,  offices,  places  and  stations  operated  only  during 
the  day-time,  except  in  case  of  emergency,  when  the  em- 
ployes named  in  this  proviso  may  be  permitted  to  be  and 
romain  on  duty  for  four  additional  hours  in  a  twenty- 
four  hour  period  or  not  exceeding  three  days  in  any 
week:  Provided  further,  the  Interstate  Commerce  Com- 
mission  may,  after  a  full  hearing  in  a  particular  case  and 
for  good  cause  shown  oxtond  the  period  within  which  a 
roiiiiiion  carrier  sliall  comply  with  the  provisions  of  this 
|)r()viso  as  to  sucli  ease.  (Act  provides  penalties  for  vio- 
hition  and  excepts  cases  of  unavoidable  accident,  where 
delay  could  not  liave  been  foreseen,  wrecking  crews  and 
relief  trains.)     {?A  Stat.  1416-1417.) 

138 


INDEX 

A. 

Act  of  1908  9 

Act  of  1910 — Amendments 13-14 

Act  of  1906— Invalid 18 

Act  of  1906— Valid  in  D.  C.  and  Territories 18 

Action — For  death   9-101 

Action — For  death — Representative  must  bring .  .  101 

Action — For  death — Act  grants  new  cause  of .  . .  .  103 

Action — For  death — Beneficiaries 9-105 

Action — Joinder  of 83 

Action — Transitory 85 

Action — Venue 13 

Action — Right  of — Surviving   14-117 

Agent — Causing  injury   54 

Alien — Action  for  death  of 108 

Amendments — Of  Act 13-14 

Amendments — Of  pleadings 89-99 

Appeal  and  error — Requirements 97 

iVpportionment — Of  damages 60 

Appurtenances — Safe   137 

Ash  pan — Act 136 

Assumption  of  risk — When  defense  11, 12, 16,  25,  65,  68-72 
Assumption  of  risk- — Provision  in  Safety  Act.  . .  .  135 
Assumption    of    risk — Distinguished    from    con- 
tributory negligence 65-70 

Assumption  of  risk — Instruction  69-71 

Automatic  coupler 58 

Automatic  coupler — Safety  Act   132 

Automatic  coupler — Defective — Form 126 

B. 

Beneficiaries — In  action  for  death 9-105 

Benefits— Set  off 12-100 

Boat — Employee  on — When  included 50 

139 


INDEX 

Boiler— Safely  Act 137 

Boiler — Eepair  of  52 

Brake— Safety  Act 132-134 

Brake — Step — Defective 54 

Brakeman — When  included   38-68 

Bridge — Employee  on — When  included 32-48 

Building — Employee  on — AVhen  included 49 

C. 

Camp — Employee  in — When  included 44-56 

Care — Of  employer 57 

Care — Of  employee 71 

Citizenship — Diversity  of  82 

Commerce — Defined  27 

Common  carrier — Defined   136 

Common  carrier — Includes  receiver 13 

Common  law — Act  supersedes 19 

Common  law — No  vested  right  in 16 

Complaint — Allegations  necessary 86,  89-121 

Conductor — When  included  37-69 

Conductor — Risk  assumed  by 69 

Constitution — Act  in  accord  with 15-82 

Constitution — State — Act  supersedes 19-24 

Construction — Rules  of  77 

Construction — Federal  decisions  govern 76 

Contract — Of  exemption — Void 12-100 

Contributory  negligence 11,  16,  62,  70,  72-73 

Coupler— Defective 72-128 

Couits — Jurisdiction  concurrent 13-79 

D. 

Damages — Contiil)utory  negligence   59 

Damages  for  death — Measure  of   113 

Damages  for  deatli — Pecuniary  loss 109 

Damages  for  death — Decedent's  pain 116 

Damages  for  death — Apportionment 118 

140 


INDEX 

Damages  for  death — Instruction 115 

Death — Action  for — New  cause  of 103 

Death — Action  for — Beneficiaries 105 

Death — Action  for — Forms 121 

Decisions — Federal — Govern  76 

Declaration — Requirements 87,  89-120 

Declaration — Forms   121 

Defect — In  track — Form 124 

Demurrer — Form   131 

Diligence — When  not  defense 75 

District  of  Columbia — Act  applies  in 10 

Domicile — Removal   81 

Drawbar  Safety  Act 133 

E. 

Electric  car — When  included 74 

Employer  and  employee 27,  55-136 

Empty  car — When  included 42 

Engine  Repairing 52,  54-135 

Engineer — When  included   38-48 

Engineer — Risk  assumed  by 68 

Equipment — Safety  Act 135 

Evidence — Requirements 96 

Evidence — Performance  of  duty 36 

Evidence — Neglect  of  railroad 57 

Evidence — Care  of  employee 61 

Excessive  speed — Allegation   125 

Exemption — Contract  for 12,  17-100 

Express  agent — Excluded 57 

F. 

Federal  statutes — Safety  acts  only 75 

Federal  decisions  govern 76 

Fellow  servant — Doctrine  abolished 16,  64-71 

Fireman— When  included 30,  38-43 

Flagman — Negligence  of 64 

141 


INDEX 

Forms — Declaration — Death    of    switcliman,    for 

benefit  of  widow 121 

Violation  of  Safety  Act ....  126 

Allegations — Death  from  defective  track  124 

Excessive  speed 125 

Death  of  yard  clerk 129 

Demurrer 131 

General  issue 131 

G. 

General  issue — Plea  of — Form 131 

Going  home — When  employee  included 44 

Going  to  work — When  employee  included 44 

Grab  iron — Safety  Act   133 

H. 

Hand  car — When  employee  on — Included 44-50 

Hauling  coal — AVhen  employee  included 47 

Home-going — ^When  employee  included 44 

Hostler — When  included 36-41 

Hours  of  Service  Act 75-138 

I. 

Ice — When  employee  supplying  included 51 

Illegitimate  child — Has  no  kin 107 

Inspector — When  included  40 

Instruction — In  terms  of  Act 71-96 

When  employee  included 53 

Negligence r)9,  60,  ()1,  63-96 

Damages  for  death  115 

Knowledge  of  danger 61-62 

Construing  Act 63 

Assumption   of  risk 67-69 

InstruiiK'nI.'ilil y — Causing  in,jni>' 54 

Maintenance  33-51 

142 


INDEX 

Interstate  Commerce — Employer  engaged  in 9-27 

Employee  engaged  in  ....  9-28 

Question  for  jury 53 

Agent  or  instrument  caus- 
ing injury 54 

J. 

Jerk — Eisk  of  not  assumed 67 

Joinder — Of  actions 56-83 

Jurisdiction — Concurrent  13-79 

Removal  prohibited   80 

Jury — See  verdict. 

L. 

Laborer — When  included 46 

Leased  railroad 56 

Life  insurance^ — Evidence  of 115 

Light  and  guard 58 

Limitations — Two  years  13-99 

Amendments 99 

Loading — When  employee  included 45-47 

M. 

Machinist — When  included  52 

Mandamus — For  removal  82 

Master  and  servant — Relation  must  exist 55 

Mechanic — When  included 52 

Medical  attendance — Expenses  for 115 

Mining  coal — Excluded 48 

Moving — Material — When  included   32,  47-51 

N. 

Negligence — Of  railroad   57 

Of  employee 11,  59-63 

Under  state  and  common  law 57 

Allegations  necessary 91-95 

Evidence  necessary 95 

148 


INDEX 

Question  for  jury 58 

When  Safety  Act  violated 72 

Instruction 63 

Of  fellow  servant 64 

Next  of  kin — Action  for 9,  14-104 

Determined  by  staite  law 105 

0. 

Oil — When  employee  moving  included 51 

P. 

Pain  and  suffering — Damages  for  decedents 116 

Of  survivors — Not  element  of 

damages 114 

Panama  Canal  Zone — Included 10 

Pecuniary  loss — Of  next  of  kin 109 

Measure  of  damages 113 

Keasonable  expectation  . .  36,  91, 102-113 

Federal  rule  controls 113 

Allegation  necessary 120 

Performance  of  duty — Employee  must  allege  and 

prove 36-91 

Personal  representation — Must  sue  101 

Place  to  work — Furnishing  safe 57 

Plea — Eequirements  62,  92-131 

Pleading— Requirements  57,  86,  87,  89,  119-120 

Act  need  not  be  pleaded 24,  86-89 

Forms 121 

l*ractice — State  rules  followed 93-94 

Prejudice — Local — Not  ground  for  removal 81 

Procedure 94 

Possessions— Of  U.  S.  included 10 

Pullman  car  porter  excluded 55 

Pumper — When  included 33,  41-44 

144 


INDEX 

R. 

Railroad — Defined    137 

Rails — Relaying — When  included 56 

Receiver — Included   13 

Remedy — Exclusive 19 

Removal — Of  cause — Prohibited   13-80 

Not  unjust  discrimination IS 

Repairs — When  employee  included 32,  33,  51-52 

Representation — Must  sue 101 

Risk— When  assumed 66,  68-69 

Roundhouse  employee — When  included 41-69 

Risk  assumed  by 69 

S. 

Safety  Acts— Violation  bars  defense H,  12,  66-72 

Due  diligence  no  defense 74 

Only  Federal  statutes 75 

Electric  railway  74 

Declaration — Form    126 

Brakes 132 

Automatic  coupler 132 

Grab  iron  133 

Sill  steps 134 

Hours  of  service  138 

Section  foreman — When  included 40 

Hand — When  included 44,  46-51 

Set-off   12 

Signalman — When  included 41 

Signal  system — Installing 51 

State  law — Superseded 19 

Practice  followed  93 

Steam  shovel — When  employee  on  included 48 

Street  railway — ^When  employee  included 50 

Sill  steps 135 

Stencil — Cleaning 52 

Switchman — When  included 39-47 

145 


INDEX 

T. 

Temporary  absence — When  employee  included  . .  45 

Territories — Act  applies  in 10 

Tools — Must  be  free  from  defects 74 

Track — Defection — Risk  not  assumed 67-68 

Allegation    124 

Eepair — When  employee  included 32,  33-46 

Traffic  arrangements    56 

Transit — Employee  on  train,  in 50 

Truckman — When  included 41 

U. 

Unloading — When  employee  included 31,  45-47 

V. 

Venue — Of  action 13 

Verdict — General  and  special  finding 53 

By  three-fourths  jury  94 

By  five-sixths  jury 94 

Interest  on 94 

W. 

Weighing — When  employee  included  48 

Widow — Need  not  elect 107 

Cannot  sue 101 

P^orm  of  declaration 121 

Wife — Separated    106 

Work — In  part  interstate 34-43 

Going  to   44 

Train   45 

Workmen's  Compensation  Acts 26 

Y. 

Yard  clerk— When  inchided 31-40 

Dechiration  for  death  of 129 

146 


LAW  LIBRARY 

UNIVERSITY  OF  (  AUFORNIA 

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SOUTHERN  REGIONAL  LIBRARY  FAClUr/ 


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